Saturday, April 28, 2012

Dirty politics

Land is, by definition, dirty, and it's generally accepted that money doesn't mix easily with politics. So when there's a suspicion of shady land dealings by elected officials, it's fair to call it "dirty politics."

The scenario:  New Paltz Town Supervisor Susan Zimet and council member Kevin Barry had a meeting with schools superintendent Maria Rice, to discuss how the district could solve its facilities problems by expanding the high school campus.  I'm told that Rice claims that Zimet and Barry initiated the meeting, but that they disagree and claim it was Rice's idea.

The problem:  Barry owns a tract of land adjacent to the high school property, and could stand to gain if the district took his suggestion, and also decided that buying his land was the best way to do so.  Barry did disclose being a part owner of the parcel on this town financial disclosure form, and has voluntarily agreed not to sell it while in office.

The analysis:  I've been reviewing information about the underlying state ethics rules, and it seems pretty clear that Barry has created an "appearance of impropriety," which means that it looks like he's up to something.  Obviously, his promise not to sell while in office simply means he could resign if he got a good enough offer.  Or transfer his interest in a way that wouldn't legally be considered a sale, but would still allow him to profit.

But despite there being an appearance of impropriety, I don't believe that there's been an ethics violation.  Since an appearance of impropriety exists, Barry should recuse himself on this issue.  But it's not a town issue, so it will never come up.  In fact, even if Barry were actively trying to convince the district to buy his land, I don't think it would be an ethics violation, because his personal interest (selling the land) does not in any way conflict with his public interest (the residents and taxpayers of the town), at least not in the direct ways that the law requires.

There are a lot of reasons to be concerned about Barry's behavior in this case, but so far as I can tell he's done his homework, and hasn't done anything wrong in the law's eyes.  As I like to say, and all attorneys know, if you want to be able to wriggle out of something, make sure to put it in writing.


Martin McPhillips said...

It was just two or three years ago that there was a protracted discussion in the community of New Paltz that produced what seemed to be an overwhelming consensus that residents wanted the Middle School to stay where it is. The school district grandees wanted a new building out by the high school. After the consensus was reached to fix and upgrade the current Middle School, the school district grandees proposed a $50 million project that was promptly rejected. The message was: Fix the Middle School, don't slip a new school into the old package. Just fix it.

So this new grand visionary plan, courtesy of the town supervisor et al., where a new Middle School will be built onto or next to the high school once again ignores the consensus that was reached to keep the Middle School where it is. There doesn't appear to be so much as a passing acknowledgement that that consensus had already been reached.

But the supplementary vision that the current Middle School will become the new "government complex" is the one I find most uncharming to contemplate. Another indication that the people who get involved in government think that government is the most important thing there is in the life of a community and then go about trying to prove it with other people's money. How about keeping the roads open and in good repair, arrest the occasional armed robbers, and otherwise stay out of the way as best you can?

Dave said...

Kevin Barry wants *the town* to buy the middle school, *so that* the middle school can move to the high school campus, *which would necessitate the school board buying his land*. Ergo he is working, in his official capacity, to get the *town* to buy things so that he can profit.

I don't see how the ethics violation could be more self-evident. Town money, town plans, arranged directly so that some of the money goes to him.

TPW said...

I don't disagree with the feelings that this idea gives you, Dave. Many people feel that common sense clearly shows that this is wrong.

However, I don't think the ethics laws see it that way. The town ethics board may disagree, and if the idea moves forward it's sure to get messy even if they say it's fine.

To me this looks like the ethics laws aren't worded strongly enough to stop this, in and of themselves.

Brittany Turner said...

Just because the law doesn't say you *can't* doesn't necessarily mean you *should.* It's not a difficult concept, and everyone involved should know better.

Dave said...

Whether the ethics law covers it or not, it should be clear that the people see an ethics violation and he should recuse himself.

Steve Greenfield said...

It's permitted to read the ethics code while trying to ponder this. It's at the bottom of this page:

Relevant sections: 15-E-1. Mr. Barry has a potential conflict in this matter. Potential is the standard, not only actual. That's how it's written. He was required to make it known to all concerned parties. He did not. To this day he still has not fulfilled his obligation to notify the Town Board and have it made part of the official record. Also, the written disclosure of the nature of the conflict still has not been filed, and it is not being kept by the Town Clerk as a public record. I know this is about to be swept under the rug on May 21st, but 15-E-1 is perfectly clear, and not one element of it has yet been observed by Mr. Barry.

15-E-2. Mr. Barry has not made this filing. He has made a filing on which he states that he and Mr. Copeland have agreed between themselves to not sell the land to the school district so long as he's in office. But this section does not allow for such a declaration, and the statement it requires still has not been made. In addition, on both his original property holding statement, and on his inapplicable amendment attempt, only listed the one property on S. Putt that he holds in partnership with Mr. Copeland under the title "140 S. Putt LLC.' He has not listed the property adjacent to it that he owns under his own name, Kevin Barry, at 150 S. Putt. So in many ways he has not complied with this section of the code, and in no way has he complied.

At the 4/26 Town Board meeting, a matter came up about the Town soliciting County money to install water and sewer down S. Putt. This would obviously increase the value of Mr. Barry's properties, and there would be no way he could ethically participate in the discussion, even though it's a worthy discussion. He asked Town Attorney Moriello if he should recuse himself, and Moriello told him that it was up to him, but he could see no legal reason why he has to. I found this astonishing. There is absolutely no ambiguity in the Ethics Code or the corresponding sections of NYS General Municipal Code that Mr. Barry absolutely could not participate in such a discussion, and requiring the aforementioned statements for the public record. While Barry did recuse himself (probably because I was sitting there and had already mentioned in public comment that Barry would have to drop out of S. Putt improvement discussions), I still can't figure out Moriello's competency to advise, since the wording of the law is not in legal jargon, and its intent as plain as its language.

I would like Terence to explain specifically how he came to the conclusion that no violation happened, because I can't find it in the language of the Ethics Code.

TPW said...

The last shall be first: I wasn't aware of the discussion about sewer lines, or the town attorney's advice to Barry, and I agree that there's no question that his recusal was required.

The pressure being exerted on Barry and other board members is really the best way to resolve this. Public pressure on elected officials will always trump written rules, because rules always have loopholes. The public doesn't give a damn about loopholes when they feel something smells bad. That's what is going on here.

I think it's much better, because I've not only read the code, but a handy guide from the state called "Living in a Glass House: An Ethics Guide for City and Village Officials." Obviously not spot-on but I think the definitions shouldn't vary too much from village to town.

The definition upon which this would hinge is for the term 'conflict of interest,' which "is a limitation on the holding of a municipality office when the holder of the office has certain other private interests affecting the municipality."

"Interest" is only considered monetary interest, because the town code doesn't go deeper than that.

In the case of the school district, I'm sure the argument would be that it's not a conflict because Barry isn't a municipal officer of the district. Common sense dictates that yes, he has a conflict of interest, but I am not convinced that the ethics board could justify saying so given the narrow definitions involved.

We disagree on the likely outcome if this was ever discussed, but can we agree that shoring up our flaccid ethics code is worth discussing?

Steve Greenfield said...

Terence, you missed the other half of Barry's equation. That he's not on the School Board doesn't get him off the hook. The purpose of the meeting was for him and Susan to offer to have the Town buy the Middle School for purposes of providing the School District with seed money and incentive to build at the high school. The discussion was very detailed -- Kevin spoke about aid rates on building the Middle School as an addition to the High School rather than as a free-standing building, and even including a new kitchen and shipping and receiving at the location. If the conversation had merely been "we'd like to buy the Middle School, and then you'll have some seed money to build at whatever location you find suits you best and costs the least," that would be one thing. If he said "We'd like to buy one of your buildings, whichever you think you can most easily part with, and replace for the lowest cost, and we'd like your input on which building that might be, because the Town needs a building," that would be another thing. But he came in with a quid-pro-guo plan. "We buy the Middle School, you build a new one as an expansion of the High School, and add a kitchen and shipping area." And since he knows a plan like that has the potential -- and remember, the wording of both General Municipal Law Article 18, and the Town Ethics code both say potential, as well as actual -- to impact property he owns and has listed on his disclosure form, the requirements for those circumstances become operational for him. Had he handled it in either of the two alternate ways I described, I wouldn't have ever raised the matter. But with the way the meeting was called -- at the request of Barry and Zimet, not Maria as Zimet claims -- and the specific plan presented, the violation happened, and an honorable person interested in legal compliance would just cop to it, say it was an oversight, file the papers, and promise not to do it anymore. But instead, we got a shady document that keeps his property in play and his ability to continue the discussion while in office open, even though the law provides nothing for such a filing.

TPW said...

I didn't miss any of that, Steve, we just disagree about whether it's enough to get him in hot water. You and I are both intelligent enough to interpret the law, but ultimately that call would be made by a judge, which means an attorney, and neither of us can get into the head of a lawyer as well as another one can.

Personally I would rather you be right, but I think that Barry gave this a lot of thought, and probably knows some variables to this equation which are lost to us.

Steve Greenfield said...

Terence, I know it makes me a snob to tell you you're mistaken just because I know something you don't, but too bad. You're wrong. If you'd followed Kevin and Susan's actions, and their responses to reaction to that, you'd know that Barry totally blundered into this, and did nothing to cover himself. He did not file his disclosure amendment until AFTER the outcry. When Jeremiah's article first came out, he was still insisting he wouldn't file that document, even though the law says he must. And now that he's filed it, it doesn't conform to the law, even though he's a lawyer. Instead of writing down what the law required, he only wrote that he and his business partner have verbally agreed between themselves that so long as Barry is in office, they won't sell their land to the school district. But Article 18 makes no provision for such a declaration on the amendment.

I give up, Terence. You love the sound of your own verbiage, and you don't care at all whether or not you have any facts at hand, and you attack people who do care about facts, and possess one or two of them. And yes, I enjoy my own verbiage, but I never formulate it, let alone deliver it in public, without getting a few facts together. Yes, I'm free not to read your blog, and I've exercised that freedom for quite some time, and I should not have let down my guard.