20070719 conduct unbecoming ethics board

Conduct Unbecoming?

Questions Surround Smithtown Ethics Board

by Jay Beatty

July 19, 2007

Although the proceedings of the Smithtown Ethics Board have been described as “frivolous” by councilwoman Joanne Gray and her husband and attorney Lawrence Gray, continued questions about the make-up of the board and its conduct have been nothing if not serious.

The latest volley from Lawrence Gray was to question the legal membership status on the Ethics Board as of May and June 2007 [the dates of the recent hearing and decisions which resulted in finding Councilwoman Gray in violation] since the term of Patrick O’Leary had allegedly expired and no subsequent resolution of re-appointment could be located.

“It would appear that something is amiss here, especially in light of the gentleman’s erroneous, unsworn testimony regarding the terms of a State boat slip lottery,” wrote Mr. Gray in a letter to the Town Board, a letter which further suggested that the Ethics Board decision be withdrawn if the O’Leary appointment was problematic.

Apparently, attorney Gray has once again uncovered an insufficiency in the Town’s actions; nevertheless, while O’Leary was duly appointed for consecutive terms, the latest of which expired on December 31, 2006, prevailing New York State law backstops the Town’s failure to reappoint him to the Board after that expiration date.

The town’s Ethics Code provides for an unpaid, three-person Board of Ethics appointed by the Town Board to serve for terms of three (3) years. The original appointees served staggered terms.

On December 28, 2004 Patrick O’Leary was reappointed to the Ethics Board for another term. The Resolution 7a on that date read as follows: “The Town Board to authorize the following: a) Appointment of Patrick O’Leary to the Board of Ethics for a two-year term commencing January 1, 2005 through December 31, 2006.” He had previously been appointed on January 8, 2002 for a term ending December 31, 2004.”

Although neither the Grays nor anyone else was able to locate a resolution of reappointment subsequent to the end of 2006, O’Leary remains a holdover member of the Board per State law.

Section 5 of the New York State Public Officers Law provides that, with specific exceptions, public officers “having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified.”

Minds Made Up?

Even if the term was up, the effect of the town’s failure to reappoint O’Leary is apparently moot.

Entries in the billing records of the outside counsel hired to represent the Ethics Board in the wake of Town Attorney Yvonne Lieffrig’s recusal, however, raise the question of decisions being made prior to investigation and hearing being complete.

SuffolkJournal.com has obtained copies of the invoices from the Uniondale-based law firm of Sahn Ward & Baker PLLC. The lead attorney for the matter has been attorney and New York State Assemblyman Thomas McKevitt, for whom the vast majority of the billing entries are made.

The invoices raise questions as to the manner in which the Ethics Board proceeded and show a decidedly active role for Mr. O’Leary, whose comments during the May 25 hearing were decidedly inaccurate as already reported in the local weeklies. [See the July 12, 2007 issue of the Smithtown Messenger].

Even from the beginning, the invoice items reflect questionable wording. The first entry is a “telephone conference with Pat O’Leary on scheduling meeting for case strategy.”

Attorneys with whom SuffolkJournal.com spoke said it is unclear what “strategy” is needed to conduct an impartial public hearing.

Many of the items are the expected billing for time spent on review of the Town Code, telephone conversations with the members of the Ethics Board, copying, postage, and the like.

A potentially disturbing item is one made for “5/22/2007” to “Revise Board decision; research Town Code; e-mail decision to Ethics Board Members” billed for “1.10” hours at the hourly rate of $200 an hour.

The question raised is how a decision can be drafted on May 22 when the hearing had not been conducted until three days later on May 25?

“I’m flabbergasted,” responded Lawrence Gray.

Gray also pointed out that the ultimate creation of the final, “as yet unsigned decision” as he called it, was a product of deliberations apparently conducted over the Internet via email.

Numerous entries in May and June are characterized as email “on the decision.”

The question raised by Gray and other attorneys is when and where was any deliberation on the substantive record as demanded by the Town Code. Transcripts as previously obtained by this newspaper are only available for the two specific “hearing dates” of May 3 and May 25, 2007.

Few Testify

During the hearings, the only testimony put on the record was that from Councilman Edward Wehrheim, the complainant in the case, and town board Secretary Judith Dollard. Billing references make clear, however, that at least three other persons on the town payroll, Councilman Thomas McCarthy, Town Attorney Yvonne Lieffrig, and secretary Joyce Butindari were parties to telephone conferences with outside counsel during the proceedings.

Controversial Mailing

As already reported, two complaint letters written by Councilman Edward Wehrheim were sent to the Ethics Board regarding letters sent by councilwoman Gray to town residents on the waiting list for boating slips.

After a prolonged lawsuit by the State of New York resulted ultimately in the eviction of the Kings Park and Nissequogue Yacht Clubs from State property, Gray sent a letter to interested boaters informing them of the impending lottery being held by the State on November 30, 2006 for the slips previously controlled by the clubs.

Additional materials included in the mailing from Gray — specifically a refrigerator calendar magnet and a copy of a May 18, 2006 Smithtown Messenger news article regarding the yacht club dispute — were the subject of criticism. Gray had long been a critic of the yacht clubs for what she — and the State, for that matter — considered squatting on State property.

Bickering over the mailing resulted in Wehrheim complaining to the Ethics Board in two separate letters on November 15 and 28, 2006.

Although the refrigerator magnet (enclosed in some, but not all of the letters, according to Gray) listed eighteen telephone numbers for various emergency services and town departments, along with the voice and fax numbers for the Town Council office, Wehrheim objected to the inclusion of Gray’s photo and personal AOL email address. The implication was that campaign materials were being mailed to town residents with town postage. [A decision also reached by the ethics Board.]

It took another two months for the furor to result in a January 9, 2007 Town Board resolution authorizing the Town Attorney to retain the services of Sahn Ward & Baker as legal counsel to the Board of Ethics. Town Attorney Yvonne Leiffrig, normally charged with the duty of acting as counsel to the Ethics Board, cited a “conflict” in recommending the hiring of outside counsel.

It took another three months before the outside counsel produced a two-page letter to Gray intended as notice of a hearing on the complaint by the Board of Ethics scheduled for May 3, 2007. A hearing without Gray was held on May 25, 2007. The controversial decision was dated June 13, 2007.

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