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Friday, July 24, 2020

To Recuse or Not Recuse…

…that seems to be the question du jour that needs to be answered.

Let me shed some light on the subject since the town attorney seems be silent on the question thus far.

I have been blogging about some of the missteps of Miscione regarding the Conifer development on Woods Road.

Here is his latest misstep…during the public session of the Wednesday, July 22, 2010 town board meeting, Miscione stated that he now feels he DOES NOT have a conflict of interest and, therefore, he has no need to recuse himself from the vote; he plans on voting “yes” to allow the requested zoning change to pass with a majority vote.

Not so fast there, supervisor! Obviously, your town attorney has not fully apprised you of the implications of your profoundly foolish decision.

Let me explain…

...if you persist in changing your recusal vote status, you stand a chance of being removed from office. You have already violated the town’s Ethics Policy when you recused yourself the first time because recusal means that you can no longer take part in any discussions and/or deliberations regarding the project. You continue to appear to be deeply involved in this project.

There are three (3) elements to deciding if a conflict of interest exists.  An affirmative answer to any one of the three (3) elements makes it mandatory that you recuse yourself from the vote and deliberations.

First, does General Municipal Law 18 specifically address and restrict the situation at hand?

An online writing by the NYS Comptroller states:
“You may have heard of the phrase “conflict of interest.” The phrase can apply in a variety of situations which all have one thing in common: an individual with divided loyalties, such as when a person has to act on behalf of the public in connection with a matter that affects his or her personal interests. Not all conflicts of interest, however, are prohibited by law.”
General Municipal Law restricts interest in a contract with the town; however, General Municipal Law does not specifically address what exactly constitutes "a contract" and the courts have given differing opinions.

Rather than go through all the differing court opinions and boring everyone; we will move on to element number two (2)..

Does Common Law apply?

According to the Cornell School of Law, Common Law is law that is derived from judicial decisions instead of from statutes.

Several online sources including the Association of Towns; NYS Attorney General opinions; and opinions of the NYS Comptroller; along with writings of several legal attorneys in the NYSBA's publication, Municipal Lawyer, make it quite clear that the next step is a review of Common Law to decide if there is an issue.

There are several court cases I found online; however the most frequently cited is Matter of Tuxedo Conservation & Taxpayers Assn. v. Town Bd. of Town of Tuxedo, which according to How to Analyze an Ethics Problem: Recognizing Common Law Conflicts of Interest by Steven G. Leventhal, NYSBA Municipal Lawyer | Spring 2011 | Vol. 25 | No. 2, Mr. Leventhal states, in part:
The Tuxedo Court concluded that “while the anathema of the letter of the law may not apply to… [the trustee’s] action, the spirit of the law was definitely violated. And since his vote decided the issue… [the Court] deemed it egregious error.” The Court directed the Board member’s attention to the soaring rhetoric of Chief Judge Cardozo…
‘[a] trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.’ Thus, [the Court concluded that] the question reduces itself into one of interest. Was… [the trustee’s] vote prompted by the ‘jingling of the guinea’ or did he vote his conscience as a member of the Town Board? In view of the factual circumstances involved, the latter possibility strains credulity. For, like Caesar’s wife, a public official must be above suspicion.”
Also cited in Mr. Leventhal's article is the Matter of Zagoreos v. Conklin, 13 the Second Department that several years later reaffirmed the principles announced in Tuxedo.

There is no question that Miscione has been quite actively involved with the development of this area of town going back to his days as Ward 2 councilman and he still appears to be actively involved.

In a February 25, 2018 article that appeared in the Observer Dispatch (about 2 months after Miscione took office as town supervisor), Miscione is quoted as saying:
“We condensed a lot of it to C1 Commercial,” Miscione said of the area he would like to see developed. As an example, he noted how Seneca Turnpike used to be zoned for business before it was changed to commercial use. Miscione envisions development extending to Seneca Turnpike and beyond.”
Reading that article definitely gives a town resident the impression that, as a six-year councilman for the Town of New Hartford, Miscione was deeply involved in formalizing the town’s updated Comprehensive Plan specifically regarding the Seneca Turnpike/Middlesettlement Road area of town; the Comprehensive Plan was adopted by the board in July 2014.

According to town assessment records, on January 12, 2016, Sen Woo, a LLC reqistered to Paul Miscione, purchased the vacant parcel at the corner of Woods Highway and Seneca Turnpike. Nine (9) months later, in October 2016, Miscione Realty, LLC purchased property at 8275 Seneca Turnpike, three doors down from the corner his LLC purchased earlier in 2016.   Both parcels abut the property that is currently the subject of the zone change request now being considered by the town board for the Conifer development.

Representatives of Conifer have publicly stated that the 20 acres remaining after the proposed parcel split for the new development is officially completed will be developed by “someone else”.

Since the 20 acres clearly abut Miscione's property, public perception can easily conclude that given the proximity of Miscione’s properties to the 20 acres and Miscione's continued involvement with the project even after publicly recusing himself from the vote at the February 5th town board meeting, Miscione could reasonably be perceived as the “someone else” that plans to develop the 20 acres giving him a definite interest in the Conifer development.

Also, as real estate developer/broker, the public could easily surmise that Miscione might be the real estate broker for properties in that area giving him a financial benefit.  Plus, as a realtor/broker, Miscione would have an unfair advantage over other residents in knowing when/if the remaining 20 acres or other properties in the area are listed for sale.

The NYS Attorney General writes in his Informal Opinion 2002-9:
"In resolving conflict of interest questions, one fundamental principle predominates: a public official must avoid circumstances that compromise his or her ability to make impartial decisions solely in the public interest. See Matter of Tuxedo Conservation & Taxpayers Ass/n v. Town Bd;, 69 A.D. 2nd 320 (2d Dep't 1979); Op. Atty. Gen. (Inf.) No. 97-5; Op. Atty. Gen. (Inf.) No. 88.60  Even the appearance of impropriety should be avoided to maintain public confidence in government. Op. Atty. Gen. (Inf.) No. 9-5.
"Tuxedo made clear that recusal is required if the facts show that a board member's interest in a matter under review "is a personal or private one, not such an interest as he has in common with all other citizens or owners of property."
Miscione's assertion that he has no conflict of interest would more than likely fail under Common Law.

Last of the three (3) elements to consider:

What does the Town of New Hartford Ethics Code adopted by the Town Board 6-17-1970 by L.L. No. 3-1970 say?

The town's code says, among other things:
"§ 10-2. Applicability of other provisions. The standards, prohibited acts and procedures established herein are in addition to any prohibited acts, conflicts of interest provisions or procedures prescribed by statute of the State of New York and also in addition to common law rules and judicial decisions relating to the conduct of town officers to the extent that the same are more severe in their application than this chapter."
The town code clearly identifies the town's desire to conform to “common law rules and judicial decisions”... "to the extent that they are more severe in their application than this chapter."  In other words, Common Law and judicial decisions are to be taken into consideration.

Town Code further states:
§ 10-4. Conflicts of interest. No town employee shall have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature which is in substantial conflict with the proper discharge of his duties in the public interest.
  • C. No town employee shall use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others.

  • D. No town employee shall engage in any transaction as representative or agent of the town with any business entity in which he has a direct or indirect financial interest that might reasonably tend to conflict with the proper discharge of his official duties.

  • E. A town employee shall not by his conduct give reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties or that he is affected by the kinship, rank, position or influence of any party or person.

  • F. Each town employee shall abstain from making personal investments in enterprises which he has reason to believe may be directly involved in decisions to be made by him or which will otherwise create substantial conflict between his duty in the public interest and his private interest.
Here is the entire Ethics Code for the Town of New Hartford.

Miscione and Cully should also take note that the last section of the town code, § 10-8 (A) Administration of provisions, leaves no wiggle room for saying, "I didn’t know".

The town's Ethics Law also requires the posting of this code “conspicuously in each public building under the jurisdiction of the town. Failure to so post this chapter shall have no effect on the duty of compliance herewith, nor the enforcement provisions hereof”; and

"the Town Supervisor shall cause a copy thereof to be distributed to every town employee of this town."

I trust that the both the Town Supervisor and the town's Personnel Dept. has already seen to it that the town conforms to this section of the town’s Ethics code.

As with Common Law, Miscione's assertion that he does not have a conflict of interest would fail under the town's own Ethics Code.

This blog has been mailed to the town clerk's office with all attachments asking that it be made part of the town record, as well as a request that it be emailed to each town councilman and the town attorney.

To be continued...

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