Town of Brookhaven
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Farmingville, NY 11739
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Board of Ethics
Updated 6/17/11

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:

 

      1. the Town officer or employee;
      2. his or her outside employer or business;
      3. a member of his or her household;
      4. a customer or client (current or within the past five years); or
      5. 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:

 

      1. Received by the Town officer or employee from his or her parent, spouse, child or sibling; or
      2. Accepted on behalf of the Town and transferred to the Town; or
      3. Refreshments and meals received at a widely attended gathering as defined by the rules and regulations of the Ethics Board; or
      4. Motivated by a pre-existing personal relationship, as defined by the rules and regulations of the Ethics Board.

       
    1. 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.

       
    2. 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:

 

      1. Town officers or employees;
      2. His or her outside employer or business;
      3. A member of his or her household;
      4. A customer or client (current or within the past five years), or
      5. 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:

 

    1. Sales or purchases of tickets to political events.
    2. Discussion of tickets to political events.
    3. Solicitation to join a political party or activity.
    4. Discussion of promotions or transfers or changes of assignments or compensation on the basis of any political considerations.
    5. Solicitation of funds or good or services for political purposes.

See 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:

 

    1. 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.
    2. 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.
    3. Finally, the note should be signed and notarized and sent to the attention of the Ethics Board.

You may mail or drop off your request for an Ethics Board Opinion to:
Town of Brookhaven Ethics Board
c/o Kyle Markott, Executive Director
1 Independence Hill, 3rd Floor
Farmingville, NY 11738

A Brookhaven employee or official need not have the request letter notarized.

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.

OPINION 188
The name of a Town administrator was listed as “Of Counsel” on a law firm’s letterhead. The law firm was representing an applicant on a Town project for which the Town administrator was the authorizing supervisor.

Is it ethical for a Town administrator to be involved in a project when that Town administrator is “Of Counsel” to the law firm that represents the applicant of that project?

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…”

The Ethics Board has determined that the Town administrator in question has no active role in the law firm. The letterhead showing the administrator’s name as “Of Counsel” is most likely old and needs to be updated.

However, it is the opinion of the Ethics Board that although the Town administrator is no longer serving as counsel to the law firm, it gives the appearance of impropriety since his/her name is still on the letterhead. Therefore, it is our opinion that the name be taken off the letterhead to avoid the appearance of conflict.

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:

 

      1. the Town officer or employee;
      2. his or her outside employer or business;
      3. a member of his or her household;
      4. a customer or client (current or within the past five years); or
      5. 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.

OPINION 106
A large contingent of Brookhaven people who have discretionary authority on Town zoning and other matters were invited to attend a seminar on zoning and land use items. Presenters are attorneys who have often appeared before the Town on behalf of applicants. There are two aspects to this request:

First, should a delegation of such people from Brookhaven Town be allowed to attend a seminar on these topic areas? This is a clear value to the Town and there is no problem in their attending.

The second concern is that the presenters in this seminar are lawyers who have appeared before Town Boards on behalf of applicants. The attorneys may be the best in their field for this type of presentation. It is common practice to have qualified attorneys making these types of presentations and is therefore assumed that the presentation will address both the applicants and municipalities.

Therefore, the Ethics Board sees no conflict with the delegation attending the seminar.

OPINION 111
A Town employee conducts inspections of buildings within the Town in order to check their compliance with safety codes, such as sprinkler systems, alarms, etc. Would it be a conflict if this employee works as a consultant on code requirements to building owners or tenants outside the Town, on his/her own time, and using his/her own equipment?

Section 28-5 (A) of the Town Code states, in part:

“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...”

This employee would be working outside the Town in his/her role as a consultant and on his/her own time. There is a clear line separating the duties as an employee and as a consultant outside of the Town. Therefore, it is the opinion of the Ethics Board that there is no conflict.

OPINION 112
The spouse of a Town employee is a contractor who would like to bid on work at the Town. The employee’s position at the Town does not involve any decision making in the selection of contractors in his/her department. Would it be a conflict if the employee’s spouse bids on work at the Town?

(See Statute above).

Since the employee does not make decisions on the selection of contractors, the Ethics Board does not find any conflict in the spouse bidding on Town work.

OPINION 115
A Town employee asked if it would be a conflict if a commissioner hired his/her relative to work in the same department as the commissioner. The relative would work under the supervision of another employee, who is supervised by the commissioner. Should the commissioner need to make any decisions regarding his/her relative, the decisions would be deferred to the commissioner’s deputy or chief of staff.

While Brookhaven Town does not have a nepotism statute and there are at present multiple employees with family that are employed by the Town, this does not mean there is not a conflict in certain situations.

Section 28-5 A. (2) of the Town Code states:

“General prohibition. A Town officer or employee shall not use his or her official position or office, or 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…(e) A family member.”

If a family member reports to an intermediate supervisor who reports to this person’s relative, the intermediate supervisor is in a delicate position summarized by, “Can someone be expected to realistically terminate the boss’ relative?” It is the opinion of the Ethics Board that two members of the same family in a supervisory chain of command is a conflict.

OPINION 121
The Ethics Board has been asked for an opinion in a number of cases as to whether a Councilperson can have a staff member who is active in a not-for-profit community organization that is petitioning the Town for various "good causes." Do these outside activities rise to a conflict of interest?

One of the major reasons for establishing the Council District system was to have representatives that are responsive to their districts. For this to work best it requires staff that are active in the community. It is important that interested, committed persons not be discouraged from serving on various Town groups because of their role as a Town employee. The staff should be both known and visible and therefore better enable dialogue between the Councilperson and the constituency.

This activity can also lead to potential perceived conflicts. If the staff members are active in organizations that may receive Town grants or active in attempts to save parcels of land ultimately purchased with Town funds, would this be a conflict?

To rule that a staff member could not be an active member, such as an officer or director, of these valuable community organizations would seriously handicap a Councilperson from retaining possibly the best people. The Ethics Board thinks this would not be wise public policy. On the other hand, if a staff member helps to lobby for funds for an organization and that person would receive financial benefit from the grant, this would be a clear conflict.

It is the opinion of the Ethics Board that, assuming full disclosure of the staff member’s relationship to the recipient organization and absent any benefit to the staff member, there would be no conflict in such scenarios.

OPINION 141
A director at the Town also runs his own non-profit business association dedicated to networking and helping foster new business opportunities. He regularly emails a calendar of events to several hundred members of the business community on his mailing list. Would it be a conflict to list his/her Town job title underneath his name on the mailing?

(See Statute 28-5 A. (2) above).

It is the opinion of the Ethics Board that having the employee’s Town title on his/her organization’s mailing list would not benefit any of the persons listed in the above statute. In fact, his/her Town title may even promote the Town of Brookhaven and hopefully encourage businesses to move here. Therefore, the Ethics Board does not find a conflict in this case.

OPINION 142
The Ethics Board was asked for an opinion regarding a civil service Town employee running for Town Council.

There is court precedent for someone in a civil service position holding elective office in other branches of government. If the elected position and civil service position are involved in the same issue, the court precedent demands recusal. Specifically, the Ethics Board has major concerns about the same person holding elective Brookhaven Town office and also being a civil servant of Brookhaven.

The councilperson is the de facto supervisor of the civil servant’s position. In Opinion 115, the Ethics Board considered it a conflict where there was a supervisory relation between a supervisor and a family member, which was judged a conflict. In this case, the person is his own supervisor.

Clearly, if the person is a councilperson and a civil servant at the same time, this is a conflict. This conflict is more fundamental than receiving multiple paychecks.

If the person would resign temporarily from the civil service position during his/her tenure as councilperson, this would still be viewed as a conflict as the person could use his/her elected office to benefit the civil service position upon the person’s return.

However, if the person resigns from the civil service position upon being elected to Council, then a conflict is avoided.

OPINION 143
A Town employee asked if it would be a conflict if an employee works under the direct supervision of his/her relative.

This inquiry is a variation on Opinion 115 (see website). In Opinion 115 there is a question of family members in a supervisory chain. In this current Opinion 143, however, the relative is the direct supervisor, which is a blatant conflict of Section 28-5 A. (2) of the Town Code (see statute above).

It is the opinion of the Ethics Board that having two relatives work in direct supervision of each other is a conflict.

OPINION 145
A commissioner would like to appoint an inspector who is the spouse of one of the clerical staff in the same department. Is this a conflict?

(See Statute 28-5 A. (2) above).

The job responsibilities of a clerical staff member are not associated with those of the housing inspector; therefore, the Ethics Board does not find any conflict in hiring the inspector.

OPINION 152
The Ethics Board has been requested to give an opinion as to whether there is any conflict should a sitting Councilperson accept a position of Deputy Supervisor.

A Deputy Supervisor does not vote at Town Board meetings, even in the absence of the Supervisor, therefore, there is no actual problem of a Councilperson/Deputy Supervisor having two votes.

An elected Councilperson has a prime responsibility to his/her constituents to best serve the needs of the District in which he/she is elected. A Deputy Supervisor, on the other hand, has a responsibility to work closely with the Town Supervisor to best serve the needs of the entire Town. The Ethics Board has a certain amount of discomfort with this person serving two masters.

It is the opinion of the Ethics Board that should the Councilperson find a conflict between responsibilities as a Councilperson and as Deputy Supervisor, that the Councilperson understand that his/her primary responsibilities are to the constituents of his/her District. The Council representative is an elected office and takes precedence over a Deputy Supervisor appointment. It is appropriate that the Deputy Supervisor abstain from acting if there is any conflict in this regard.

In a related issue, a Councilperson or Deputy Supervisor would be privy to Town strategy on Union matters. A Councilperson’s spouse, as an active Union president, was cause for concern. The Ethics Board has had assurances that the Councilperson/Deputy Supervisor will not be involved in Union matters in order to avoid any appearance of ethical conflict.

In summary, the Ethics Board, though concerned over the same person holding these two offices, sees no ethical conflict given the proviso that the Councilperson/Deputy Supervisor will recuse on Deputy Supervisor actions and give deference to his/her elected Council representative office.

OPINION 154
A business organization (that is not connected to the Town) will hold a dinner meeting sponsored by an agency of the Town. A Town director who serves on the agency mentioned to one of the dinner speakers earlier that the agency was looking for sponsors for the dinner meeting. The speaker said he would sponsor the cost of printing for $1,500.

Is it a conflict that the Town director asked for sponsorship if he works for the Town and serves on an agency of 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...”

The selling of a sponsorship was not considered a personal gain conflict by the Ethics Board. Also, since the business organization that is holding the dinner meeting has no relation to the Town of Brookhaven, the Ethics Board does not find any conflict.

OPINION 216
The Ethics Board was asked if a Town of Brookhaven Department Head can participate in the auction to purchase vacant, surplus property that the Town intends to sell. In their deliberation, the Ethics Board referenced two sections of the Ethics Code which refer to the question asked. Ethics Code 28-1 Section B: “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. The purpose of this chapter is to establish standards of conduct and guidance to the officers, employees and appointees of the Town of Brookhaven.

The Ethics Board also referenced Ethics Code 28-5 A (2): General prohibition. A Town officer or employee shall not use his or her official position or office, or 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.

The Ethics Board has determined that this would be an apparent violation of the Code of Ethics.

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.

OPINION 140
The Board of Ethics was asked about an exemption to the current gift statute in the Town Code of Ethics.

One of the Town departments is responsible for promoting Brookhaven to new companies who are seeking to open businesses in the Town. The new business representatives sometimes choose to discuss matters with the Town directors over a simple meal in a diner.

Section 28-5 A. (3) of the current Town Code of Ethics 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.”

It is the opinion of the Board of Ethics that Town directors should be permitted to accept an inexpensive meal or beverage from prospective businesses who are interested in opening businesses in the Town, particularly since it is common practice for potential businesses to offer a meal. In fact, the current New York State code of ethics does permit accepting gifts of up to a $75 value.

Therefore, the Board of Ethics would grant a gift exemption of up to $50 for meals and beverages to directors in the office of economic development in order to encourage business in the Town.

OPINION 153
The Board of Ethics was asked if a group of five Town employees may accept an invitation to an awards luncheon by a consulting company that has done work for the Town in the past and who may solicit more work from the Town in the future. The regular cost to attend the luncheon is $100 per person.

The consultant had recently done work for the Town. On behalf of the Town and the consultant, they jointly submitted an award application for consideration regarding a project they worked on together. They were selected for an award and the consultant asked if the Town employees would attend the award luncheon as their guest.

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;

Because the Town was involved in the awards application, the Ethics Board does not consider the luncheon a gift but an award for the project submitted. Also, the luncheon is expected to be fairly widely-attended and would therefore be exempt from the gift statute.

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.

OPINION 146
Is it an ethical conflict if a Town employee serves on a Town board or committee?

Town employees are citizens and as such have the right to serve on various unpaid Town committees and boards (with the exception of the Ethics Board). However, if a specific decision benefits an employee, it would constitute a conflict and the employee must then recuse him/herself from participating in any way on the conflicting decision.

If the decisions that would elicit conflicts are considered to be a very small percentage of the decisions made by the advisory committee then having a member of the advisory committee would be acceptable, understanding that the employee would recuse in decisions where there is a conflict.

However, if conflicts warranting recusal are anticipated in over 5 percent of the decisions, then it would be best if the employee would not serve on the advisory committee.

Should the advisory committee be a paid position, this would be a conflict as the employee would be receiving two salaries from the Town.

See similar opinion #10.

OPINION 152
The Ethics Board has been requested to give an opinion as to whether there is any conflict should a sitting Councilperson accept a position of Deputy Supervisor.

A Deputy Supervisor does not vote at Town Board meetings, even in the absence of the Supervisor, therefore, there is no actual problem of a Councilperson/Deputy Supervisor having two votes.

An elected Councilperson has a prime responsibility to his/her constituents to best serve the needs of the District in which he/she is elected. A Deputy Supervisor, on the other hand, has a responsibility to work closely with the Town Supervisor to best serve the needs of the entire Town. The Ethics Board has a certain amount of discomfort with this person serving two masters.

It is the opinion of the Ethics Board that should the Councilperson find a conflict between responsibilities as a Councilperson and as Deputy Supervisor, that the Councilperson understand that his/her primary responsibilities are to the constituents of his/her District. The Council representative is an elected office and takes precedence over a Deputy Supervisor appointment. It is appropriate that the Deputy Supervisor abstain from acting if there is any conflict in this regard.

In a related issue, a Councilperson or Deputy Supervisor would be privy to Town strategy on Union matters. A Councilperson’s spouse, as an active Union president, was cause for concern. The Ethics Board has had assurances that the Councilperson/Deputy Supervisor will not be involved in Union matters in order to avoid any appearance of ethical conflict.

In summary, the Ethics Board, though concerned over the same person holding these two offices, sees no ethical conflict given the proviso that the Councilperson/Deputy Supervisor will recuse on Deputy Supervisor actions and give deference to his/her elected Council representative office.

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:

 

    1. Discussion of or solicitation of ticket purchases or sales.
    2. Solicitation to join a political party or political activity.
    3. Use of political considerations in discussing duties, positions, compensation, changes in titles or work assignments.
    4. 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:

 

    1. Sales or purchases of tickets to political events.
    2. Discussion of tickets to political events.
    3. Solicitation to join a political party or activity.
    4. Discussion of promotions or transfers or changes of assignments or compensation on the basis of any political considerations.
    5. 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.

OPINION 123
The Ethics Board was asked if it would be a conflict if a group of Town employees and their department supervisor attended a fundraiser for a Town official. The employees had approached the supervisor to ask if they may attend. The supervisor would also like to attend as long as there is no possibility of ethical conflict.

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:

      (1) Sales or purchases of tickets to political events.
      (2) Discussion of tickets to political events.
      (3) Solicitation to join a political party or activity.
      (4) Discussion of promotions or transfers or changes of assignments or compensation on the basis of any political considerations.
      (5) Solicitation of funds or good or services for political purposes.

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:

      (1) Discussion of or solicitation of ticket purchases or sales.
      (2) Solicitation to join a political party or political activity.
      (3) Use of political considerations in discussing duties, positions,compensation, changes in titles or work assignments.
      (4) Use of political considerations as the reason for promotions, assignment changes, demotions or termination.

The above statute was to address an intimidating practice that used to occur where a supervisor would pressure a subordinate to buy political tickets. That type of situation is still a conflict and the Ethics Board continues to disapprove of that practice. However, in this specific case as explained by the person asking for guidance, there was no coercion in that a number of his co-workers wanted to attend this event. The absence of coercion is critical in this case.

Since there is no coercion or political consideration involved between the supervisor and his/her staff, it is the opinion of the Ethics Board that there is no conflict in the supervisor and staff attending the fundraiser.

OPINION 171
A public "Meet the Candidates" debate for a Town Council District was scheduled to be held at a Town Senior Center but was cancelled due to the belief that it would be in conflict with the ethics statute. Would holding this event be a conflict?

Section 28-5 A. (3) of the Town Code states the following:

"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:

(1) Sales or purchases of tickets to political events.
(2) Discussion of tickets to political events.
(3) Solicitation to join a political party or activity.
(4) Discussion of promotions or transfers or changes of assignments or compensation on the basis of any political considerations.
(5) Solicitation of funds or goods or services for political purposes."

The ethics code defines "Political Activity" 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 opinion of the Ethics Board that an open debate in front of the public with all invited is not a "Political Activity" in the manner referenced in the ethics statute. The statute is directed at partisan recruitment activities and not public debates. An open debate in which candidates from all political parties are participating and given equal time to speak is more of an informational forum than a Political Activity.

In summary, there is no conflict in holding Meet the Candidates debates in Town buildings because they are not politically partisan activities but instead offer information to the public at large.

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.

OPINION 113
An appointed employee at the Town asked the Board of Ethics if there would be a conflict if s/he acted as a paid referee for Town foreclosed properties on his/her own time.

A referee is appointed by the court, with the responsibility to convey the property on behalf of the court to the highest bidder in a foreclosure. The attorney signs the deed transferring the property from the court to the highest bidder and signs the closing documents.

(See Statute above).

The employee may not use Town property in his/her role as a referee. However, because the auction of the subject property takes place in the courtyard area of Town Hall it is not a problem because "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 a referee, the employee must also refrain from using Town equipment, phones, documents or data from his/her office since this would not be accessible to the general public.

Assuming the above restrictions are followed, the Board of Ethics does not find a conflict in this matter.

OPINION 139
The Board of Ethics was asked if a director at the Town may use his/her personal laptop computer at work. The laptop computer contains contact information needed to do business with the Town. Currently, the Town does not provide the software needed to transfer the contact information onto a Town computer. Is it a conflict for the director to utilize his own computer at work in order to extract this information for Town purposes?

(See Statute above).

Such use of Town property as noted in the statute would be a conflict. However, there is no conflict or prohibition for an employee using personal property in the furtherance of his/her performing his/her Town duties. There may be security considerations in bringing in other computers but these are related to security.

It is the opinion of the Ethics Board that using personal equipment to further your job is not an ethical conflict.

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:

 

    1. 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?
       
    2. 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?
       
    3. 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 person is not a member of two Boards at the same time when invited.

(See Statute above).

Though this “revolving door” statute limits the time that s/he may appear before a Town Board, the Board of Ethics does not find a conflict since s/he is only providing information to the Board, is not representing a commercial interest and is not receiving any payment or personal benefit in appearing. It is advised that s/he disclose his/her reason for appearing before the Board and any connection s/he has to the project for which s/he is appearing.

OPINION 101
A member of the Town’s Planning Board was asked by an ad hoc group of independent consultants to provide technical services for a Request for Proposal (RFP) for the County. This County work group consists of representatives from various County departments in order to provide input on the design, conduct and review of a feasibility study.

The Planning Board member would provide about one hour’s unpaid work that is unrelated to any work on the Planning Board.

As a member of the Planning Board, would there be any conflict of interest in working on this project?

It is common for someone with expertise in specific areas to help prepare RFPs. Certainly if this work is unrelated to any projects on the Planning Board, the Ethics Board does not find any conflict in the Board member working for the County work group. However, even if the project was a joint County/Brookhaven initiative where the Planning Board would have County involvement, it also would not meet any conflict of interest issues. It would be viewed as part of the joint County/Brookhaven initiative.

OPINION 103
The Board of Ethics was asked if a Town employee may work as a consultant to the Town after being terminated as a Town employee.

(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 former Town employee as a consultant, as in this case. Actually, rehiring a former employee or retiree as a consultant is common practice in government or industry.

The former employee 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."

See related Opinion 62.

OPINION 104
A former Town employee was terminated one month ago. He/she would like to begin working for a company that is a paid consultant of the Town. His/her position, department and duties at the new company would not be the same as they were at the Town. Would it be a conflict if this person worked on projects that were dealing with Brookhaven?

(See Statute above).

The intent of the revolving door statute is to prohibit an employee working in a given area from exploiting the collegial relationships with fellow Brookhaven employees in a subsequent post-Brookhaven employment situation. This could be either making inappropriate decisions on behalf of the future employer or using the relationships inappropriately subsequent to Brookhaven employment.

Both of these concerns assume that the person in question is working with the same Brookhaven group both before their termination and post-termination. If the subsequent employment is not dealing with the same departments as the person before, then the revolving door prohibition would not apply.

OPINION 109
A former Town employee would like to begin working for a company that is a paid consultant to the Town. His/her position, department and duties at the new company would not be the same as they were at the Town. The employee was a known advocate for the awarding of a contract to the company where he/she would be a consultant. Would it be a conflict if this person worked on projects that were dealing with Brookhaven?

Section 28-9 A. (2), the “revolving door” statute, 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.”

We have several opinions regarding the revolving door statute, each with its own nuance. Some of our earlier opinions, as posted on the website, are as follows:

 

  • Opinion 36 -   May a former Town employee continue to work outside the Town in a similar capacity?
  • Opinion 103 - May a Town employee work as a consultant to the Town after being terminated as a Town employee?
  • Opinion 104 - A former Town employee was terminated one month ago. He/she would like to begin working for a company that is a paid consultant of the Town. His/her position, department and duties at the new company would not be the same as they were at the Town. Would it be a conflict if this person worked on projects that were dealing with Brookhaven?

Though these are not directly related to this opinion they are examples of the ways in which the revolving door statute are relevant in different post-employment cases.

One of the objects of the revolving door statute is to prohibit an employee working in a given area from exploiting the collegial relationships with fellow Brookhaven employees in a subsequent post-Brookhaven employment situation. This could be by either making inappropriate decisions on behalf of the future employer or using the relationships inappropriately subsequent to Brookhaven employment.

These concerns assume that the person in question is working in the same area both before and after his/her termination. In Opinion 104 we stated that if the subsequent employment is not in the same area before and after termination, then the revolving door prohibition would not apply.

In Opinion 103 a Town employee wanted to work as a consultant to the Town after being terminated. This was not a conflict since rehiring a former employee or retiree as a consultant is common practice in government or industry.

Another equally important objective of the revolving door statute is that an employee of Brookhaven should not advocate for the awarding of a contract to a consultant or outside firm and then gain employment with the firm. This has an appearance of a quid-pro-quo.

If the former employee is a known advocate for the awarding of a contract with a firm, he/she will be disqualified from the exemption as articulated in Opinion 104.

Additionally, 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…”

Therefore, when an officer or employee of the Town is active and present in awarding a contract and can reasonably know that these advocacy actions may lead to a salaried position, it is a conflict.

In Opinion 36, where an expertise conflict existed, the Ethics Board decision was:

“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.”

However, in the current Opinion 109, where a perceived quid-pro-quo exists, the former official or employee may not accept any consideration from the contract recipient and may not work for the new company in any capacity (such as working on non-Brookhaven projects).

It is the opinion of the Ethics Board that being an advocate for awarding a contract is the determining factor so that the revolving door statute is in effect in this case for a 1- or 2-year period. If the advocacy and the subsequent job were in the same area, the 2-year period would apply.

OPINION 110
The Board of Ethics was asked if a Town employee may work as an independent consultant or as a consultant to the Town after being terminated as a Town employee.

(See Statute above).

This prohibition deals with employees appearing before the Town on behalf of someone with an application or someone suing the Town. If the former employee is representing a private client, he or she would have to wait the one or two years to appear or practice before the Town.

However, there is no preclusion for the Town hiring a former Town employee as a consultant. Actually, rehiring a former employee or retiree as a consultant is common practice in government or industry. The former employee 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."

See related Opinion 62.

OPINION 136
A former Town Commissioner asked if he could submit a proposal for consulting work with the Town shortly after being terminated.

The “revolving door” statute (section 28-9 A. of the Town Code), 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.”

The Ethics Board deliberated as to whether the revolving door statute equally applies to an individual who voluntarily leaves versus being terminated.

Some members of the Ethics Board thought that the reasons for the revolving door statute were to address those voluntarily leaving rather than being terminated. However, given the difficulties in actually determining who is voluntarily or involuntarily terminated, the Ethics Board decided that the letter of the revolving door statute, with its timetable, applies in either case.

Therefore, the former Commissioner must wait for a 1- or 2-year period before bidding on contracts.

OPINION 155
A former Town Commissioner who was terminated by the Town over one year ago asked if he could bid on a project working for an outside agency.

(See Statute above).

The former Town Commissioner did not previously work on projects for the outside agency therefore the waiting period would be one year. Since the former Town Commissioner was terminated over one year ago the one-year waiting period has expired. The Ethics Board finds no conflict in this case.

OPINION 168
A former Deputy Supervisor of the Town began employment with a consulting firm that was awarded a project by the Town. The interval of time between the termination of employment at the Town and the awarding of this project was 20 months.

Section 28-9 A. of the Town Code 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.”

It is the opinion of the Ethics Board that hiring the former employee to work with the awarded project would be a violation of the above statute since the time period was 20 months, which falls short of the 24-month restriction period. However, the conflict applies to the involvement of the ex-employee and does not mean that the company involved is prohibited from working on any other Town projects.

The revolving door ethics statute (section 28-9 B.) relates to consultants:

“Restrictions - Town consultants. All Town consultants, including but not limited to attorneys, architects, engineers, land use or economic consultants, shall be prohibited from performing any work or services for any entity, individual, property owner or other involved governmental agency which may reasonably relate to the subject matter of the report. This prohibition shall be for a period of two years, which shall commence upon any action taken by the Town as a result of the consultant's recommendations. All consultants shall disclose in writing any and all entities, individuals, property owners or other governmental agencies for which the consultant is currently providing or has previously provided services, which involve the subject of the report.”

Section 28-9 B. does not prohibit a consulting firm from working on multiple projects for the Town either concurrently or sequentially. The conflict occurs when those with project consulting expertise subsequently consult for another individual or company to work on the same project. For example, if a consultant working for the Town on a particular development subsequently works for the project’s developer within a 2-year period this would be a conflict.

On Financial Disclosure Requirements

OPINION 7
An applicant applying for economic development grants was concerned with the requirements that s/he has to submit a financial disclosure form. The Ethics Board acknowledged the receipt of this form without prejudice and stated that s/he had met his/her financial disclosure submission requirement. It was also noted that if, at a later time, a conflict is brought to the Ethics Board’s attention the Board will consider the matter and at that time examine the file.

OPINION 17
The Board of Ethics received a letter with six (6) completed “Application for Public Inspection of Financial Disclosure Statements” applications for six (6) Town employees.

This request for financial disclosures is quite broad. The Ethics Board views financial disclosures to be confidential. We want people to feel the information divulged is not generally open to anybody for the asking, therefore a broad request for financial disclosures is declined as they are viewed as personal. However, if one has a specific suspicion of impropriety, the Ethics Board would like to hear about that and would honor a narrowly-focused request.

OPINION 51
The Board of Ethics was asked if Town employees must submit a new Financial Disclosure Form if they were to start a new business or accept outside employment during the year.

Section 28-11 A. of the Town Code states the following:

All officers and employees required to file a disclosure statement as outlined in § 28-10 shall file such statement with the Ethics Board of the Town of Brookhaven on official forms as established by resolution of the Town Board on or before the 31st day of January of each year or within 30 days after their election, or appointment to office (or related agency) in the Town of Brookhaven, whichever shall occur first.

A new Financial Disclosure Form is required by January 31 of each year or when an employee is elected or appointed to a new position in the Town. However, the current Town of Brookhaven Code of Ethics does not require that a new Financial Disclosure Form be filled out each time that an employee’s personal information changes. Therefore, if an employee should start a new business or accept outside employment in the course of the year, the form would be due by the next January 31.

Though the present ethics statute does not require that a new Financial Disclosure Form be filled out when an employee starts a new business or accepts outside employment, the Ethics Board is considering a change in the code whereby a new disclosure form would be filled out in these cases.

Requested Opinions outside our Jurisdiction

The Ethics Board sometimes receives requests for opinions that are outside of our jurisdiction, that is, those requests that are not relevant to the Town of Brookhaven Code of Ethics.

OPINION 2
The Board of Ethics received a letter from a Town employee who stated s/he was forced to resign from his/her part-time position due to the new Administration changing his/her work schedule, which conflicted with the employee’s full-time job.

The Board’s authority is based on the Town Ethics statutes that are primarily conflict of interest matters. As such, this employee’s concerns do not fall within the Board of Ethics’ purview. The Board, therefore, ruled that this matter is not within our jurisdiction.

OPINION 54
A Town resident called the Board of Ethics to inquire if she could file an ethical complaint against a real estate agency. The caller claimed that she gave her real estate broker an offer on a house but the broker failed to communicate the offer to the homeowner thereby losing the house. She asked if a Town attorney could represent her in this case.

This is a complaint between a customer and a service provider with whom the Town has no relationship. Therefore, the Ethics Board found that this request is outside of its jurisdiction.

OPINION 58
The Board of Ethics was asked if a Town of Brookhaven employee is permitted to informally respond to a request to examine building permit applications or allow someone to remove them from Town property without a FOIL request or authorization.

The Freedom of Information Law (FOIL) allows for public access of records, unless the records fall into one of nine criteria for denial (see “Access to agency records,” §87-2 at http://www.dos.state.ny.us/coog/foil2.htm). If none of the records in the Building Department fall under the denial criteria, and in keeping the spirit of FOIL, people are therefore given access to these public records. A FOIL is best executed in an informal way, where people may be able to examine records to determine just what they need to make copies of. This would allow simplifying the information request process. A FOIL does not permit or condone the removal of information.

The policy of how employees respond to FOIL requests is an internal matter for the Building Department, and not under the jurisdiction of the Ethics Board.

OPINION 69
A Town resident called with a complaint that a neighbor constructed something that was not permitted by the Town building code. The caller also complained about the way his/her complaint was initially handled by another Town department.

The authority of the Board of Ethics is based on the Town Ethics statutes that are primarily conflict of interest matters. The caller’s concerns dealt with a possible violation outside the ethics code as well as a supervisory matter regarding a Town employee. The Board, therefore, ruled that this matter is not within our jurisdiction, and referred the complaint to the appropriate person(s) at the Town.

OPINION 84
The Ethics Board was asked if a current Fire Commissioner can prohibit a volunteer firefighter from displaying a political sign on his/her personal vehicle when it is parked on fire department property when the volunteer is there on official business, and whether the Commissioner can use fire department computers and e-mail to solicit support in the upcoming election.

Fire departments have their own municipalities and can choose to adopt their own ethics code. Absent their making that selection, they are under the County's code of ethics by default.

Therefore, any ethics conflicts would not be under the jurisdiction of the Ethics Board.

OPINION 102
An employee at Brookhaven Town is also a Zoning Board (ZBA) member of another Township. There is a major project being proposed in the other Town that may have implications for Brookhaven. Is the employee required to recuse him/herself from participating on any decisions on the other Town’s ZBA?

Recusal should be considered if a specific individual has a substantive conflict of interest on a project that comes before him/her. If the project has implications to Brookhaven, the employee should understand these consequences. It would be useful that the ZBA of the other Town be informed of these consequences in making its decision. Just being an employee should not be considered a conflict as s/he has no monetary gain in the approval or disapproval of the project.

It would be beneficial for the employee, when appearing before the other Town’s ZBA, to clarify for them whether or not s/he is speaking in his/her official capacity as a Brookhaven employee or authorized to speak on behalf of the Town on this project.

Finally, the Ethics Board’s authority is primarily conflicts of interest within Brookhaven Town. We have no statutory authority in other Towns and therefore decline to ask for any recusal both on jurisdictional and ethical grounds.

OPINION 114
A Town employee asked the Board of Ethics if it would be a conflict of interest to hang a poster on his/her office which contains a religious figure.

The Town does not have a policy regarding religious artifacts in the workplace. If, however, the religious item is very large and distracting and is located outside of one’s own private workspace, it could be construed as a Town endorsement of the religion, which could be a problem.

This is outside the jurisdiction of the Board of Ethics. However, we find no conflict in this matter since the poster is kept within the confines of the employee’s office.

OPINION 173
The Ethics Board was asked for an opinion regarding an email that was sent from one employee to another through the Town’s email.

Employee “A” sent an email to Employee “B” which later ended up in the possession of a third party. There were no FOIL requests made for the email, so it is assumed that the email was shared between Employee “B” and the third party.

Is it ethical for an email that is directed to one person to be shared with the public by the recipient?

It was determined that the department that received the original email has a procedure in place wherein all emails are printed out and placed in a public file within that department. Therefore, all emails in the file are available to the public. However, all e-mails, whether printed or not, and unless in some manner privileged, are subject to disclosure under the Freedom of Information Law (FOIL). Also, should litigation be brought in this project, the e-mail in question would become public in the litigation discovery process.

Although it is not illegal to share emails with others, it is breaking confidentiality to share emails with those to whom the email was not intended. Nevertheless, there should be no expectation of privacy in sending emails. In this particular case, there was a procedure in place whereby all emails within the department were put in a public file. Therefore, the Ethics Board does not find a conflict in this matter.

The Ethics Board


Kathryn Coward

Kathryn L. Coward works in the Suffolk County Supreme Court Commercial Division as a Court Attorney/Special Referee. Prior to joining the Court System, Ms. Coward served as Chief Counsel to Senator Serphin Maltese of the New York State Senate and worked in private practice in Commercial and Employment litigation and Real Estate. Prior to her legal career, Ms. Coward worked as a Corporate Controller and In-house Accountant for several Long Island corporations. She has a Bachelors degree in Accounting and Finance from Southampton College and a J.D. Degree from Jacob D. Fuchsberg Law Center at Touro College.



Gary R. Brown
Gary R. Brown is Senior Vice President, Chief Compliance Officer and Chief Counsel for Litigation at CA, Inc., where he manages the Company’s global compliance program and litigation docket. Previously, Mr. Brown served as an Assistant United States Attorney in the Eastern District of New York for more than 15 years, most recently as the Chief of the Long Island Criminal Division. In 2000, the National Law Enforcement Association named Mr. Brown “Prosecutor of the Year” in recognition of his investigation and prosecution of several prominent cases including the conviction of medical serial killer Michael “Dr. Death“ Swango. His published writings include articles on internal investigation, civil forfeiture law, the Federal Sentencing Guidelines and representation of battered women. Mr. Brown earned his law degree from Yale Law School and received his undergraduate degree from Columbia College.


James E. McElhone
Mr. McElhone, a partner in the law firm of Barbera & McElhone P.C., is an attorney in the private practice of law in Miller Place. Mr. McElhone also serves in Research Service for the New State Senate. A 1983 graduate of SUNY Geneseo (BA) and a 1986 graduate of SUNY Buffalo School of Law (JD), Mr. McElhone began his legal career as an Assistant District Attorney in Suffolk County in 1986. After serving for three years, he practiced in a House Counsel role to a major insurance company and as an associate attorney to a mid-sized firm before establishing Barbera & McElhone P.C. with his law partner, Janine A. Barbera. Mr. McElhone concentrates in the areas of personal injury, criminal and family law. He is also an Assistant Scoutmaster with Boy Scout Troop 161 in Shoreham and a religious education teacher at St. John the Baptist RC Church in Wading River.

Ethics Quiz

Forms

Financial Disclosure Form

 

Transactional Disclosure Form (PDF version)

Help File for Financial Disclosure Form

*DEADLINE FOR SUBMISSION: January 30, 2009*
(or within 30 days of hire or appointment)

The following is to serve as a “Help File” for the screening part of the Financial Disclosure Form. Examples are provided in most cases to help understand specific questions.

All recipients must fill out, sign and have notarized the screening part of the Financial Disclosure Form, which contains seven “Yes/No” questions.

NOTE regarding ex-spouses: The Ethics Board appreciates that often the relationship and communication with an ex-spouse can be minimal. For the questions asking about a family member, please describe, as best you can, if your ex might be in a situation that could place you in a possibly conflicting situation.

QUESTION #1
Have you or any family member (this is defined on the General Instruction page) or business associate (also defined on the General Instruction page) been involved with any business that provides sales or service to, or has lobbied the Town? (“Involved” means receiving financial gain).

Example A: Members of Brookhaven government are both selling to the Town and making decisions about these purchases.

Example B: Your spouse is a paid lobbyist that is actively lobbying Brookhaven Town.
These relationships may not be conflicts or perceived conflicts; however, the Ethics Board would like to be aware of these relationships.

QUESTION #2
Example: A building inspector examines a property prior to a sale and the inspector also has a real estate business on the side. He is also soliciting real estate work during the inspection. The question “have you or a family member or business associate solicited outside business from any person or entity that you dealt with in your Town capacity” is an attempt to illuminate this type of relationship.

QUESTION #3
We wish to know if there are potential conflicts surrounding applications.
Example: Members of the Town government are silent partners in a strip shopping center application.
We do not want to discourage Town employees from getting permits for additions to their own homes so we exempted primary residence applications. Question #3 is also to provide sunshine on any expeditor or lobbying side business of you or a family member.

QUESTION #4
Questions #1 and #3 ask about certain relationships. Question #4 is a catch-all for any other business relations that may be conflicting. We set a threshold to only involve relationships with substantial financial involvement.

QUESTION #5
Most non-profit organizations are improving Brookhaven Town’s quality of life and the involvement of Town personnel in these organizations is encouraged. These relationships do not involve conflicts. However, the Ethics Board would like to be aware of those relationships where a financial benefit exits. We then may be able to judge any conflicts or perception of conflict.

QUESTION #6
The revolving door scenario can appear to be a conflict.
Example: A Town person working for a provider of Town services or a developer soon after terminating Town employment can be troubling. It may appear that the ex-official or employee is exerting influence over his former colleagues or has given favorable deals to someone with an understanding of future employment. Question #6 asks this type of question.

QUESTION #7
This asks about gifts. A gift is unsolicited and is not linked to any specific action. If the money is in payment for a specific action it is a bribe (not a gift) and any amount is illegal. We are only interested in gifts that may be or appear to be a conflict. Gifts from other town employees and relatives are exempt. Reimbursements from non-Town sources, such as payments for travel, may be gifts in disguise.

If you answered “no” to all seven questions, you only have to read the backside of the Screening Form, sign and have it notarized. You do not have to fill out the “All respondents complete this section” page or the remaining pages.

Only those who checked “yes” to one or more screening questions begin the Financial Disclosure Statement by filling out the “All respondents” page which is common information. From then on only complete the sections where you checked “yes” in the screening form.

At the end of the Financial Disclosure form, once again sign and notarize this section of the form, along with the signed and notarized Screening Form.

The Financial Disclosure Form is due by January 30, 2009.

Please drop off at the Law Dept. window (in sealed, confidential envelope) or mail to:

Sarah Battaglia
Executive Director, Ethics Board
One Independence Hill, 3rd fl.
Farmingville, NY 11738


Resources

Much has been written about Municipal Ethics. The Brookhaven Ethics Board primarily follows the Brookhaven Ethics statutes referenced above (see Chapter 28).

For those who wish other sources there is the following:

The New York State Code. General Municipal (GMU) code Article 18 - Conflicts of Interest of Municipal Officers and Employees. Sections 800-813 are relevant:

 

The Conflicts of Interest Board of New York City (COIB) web site is a useful source of ethics information. This includes a number of interesting links:

 

  • A link to a copy of the all of the New York State Article 18 Statutes. This is a pdf file for downloading
  • The State of New York convened a Temporary State Commission on Local Government Ethics in January 1993. The Final Report was a major influence on the content of the Brookhaven Town Ethics Statutes. This site has a link to a pdf image of the report that is 60 pages.
  • Links to the Attorney General’s Opinions on ethics topics of interest.

The New York State Ethics Commission web site is of interest. It includes a table with links to all the statutes in New York relevant to ethics. A reminder, this is a State Commission, not the Brookhaven Board.

Frequently Asked Questions (FAQs)

What is the Town’s policy on holiday parties?

The Ethics Board is concerned about the appearance of accepting holiday party invitations from an entity that does business with the Town as either a vendor or applicant. Certainly, if this were a focused group of attendees, mainly those in Town government that have direct responsibility for making decisions impacting this entity, they would be expected to decline these invitations.

However, the ethics statute contains an exemption:

(3) (c) Refreshments and meals received at a widely attended gathering as defined by the rules and regulations of the Ethics Board;

Therefore, if the party is widely attended by a mixture of people who may or may not be in an influential decision-making position, and is a typical holiday celebration, the Board does not find attending this event a conflict.

The Ethics Board chooses to define the following Town employees and officers as decision-makers.
 

  • Brookhaven Town Supervisor and management staff
  • Town Council and their managerial staff
  • Ethics staff
  • Town Attorney and management staff
  • Members of a decision-making Board

What is the Town's policy on receiving holiday 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.

Is it an ethical conflict if a sanitation worker receives an unsolicited Christmas gift?

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.

See Ethics Statute on Receiving Gifts



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