Letter to the Editor: Town Board member Buckley should recuse himself from Chap. Crossing issue
September 24, 2010
by Rob Greenstein
On August 10, 2010, after the joint town and school board discussion of Chappaqua Crossing, a resident asked town board member John Buckley, a local real estate agent, whether he was considering recusing himself from consideration of the Chappaqua Crossing issue.
“That issue has been raised,” Buckley responded. “I’ve taken it to counsel [for the town board, Clinton Smith], he evaluated it and said ‘You do not need to recuse yourself from this issue.’ ” Supervisor Barbara Gerrard interjected, “There is no conflict.” [This conversation was reported in the Monday, August 16, 2010 edition of New CastleNOW.org. Click HERE for article.]
Board of Ethics decides recusal issues, not town attorney
First, according to the New Castle Code of Ethics, this issue of recusal should have been taken to the three-person Board of Ethics, not directly to town attorney Clinton Smith.
According to the Town of New Castle’s Code of Ethics, Section 9-4 (D) (3) “the Board of Ethics shall render in writing advisory opinions with respect to the interpretation and application of this chapter [Code of Ethics]. Such opinions shall be rendered at the written request of the Town Board, the Town Attorney or the town official or employee whose conduct is in question. The Board of Ethics shall notify the Town Board whenever any request for an advisory opinion is received and furnish a copy of any advisory opinion which it shall render to the Town Board and the Town Attorney. Advisory opinions of the Board of Ethics shall be solely for the guidance of the town official or employee whose conduct is in question, the Town Board and the Town Attorney and shall not be binding on any of them. The Board of Ethics shall keep a record of its proceedings and opinions.”
On September 20, 2010, I sent a Freedom of Information Law (“FOIL”) request to the Board of Ethics requesting copies of any and all advisory opinions regarding whether John Buckley should recuse himself from consideration of any Chappaqua Crossing issues. Under FOIL, the town has five days to respond to my request, which would be today. I am confident that they have taken my request seriously and will act on it promptly.
But, putting aside the issue of whether the proper procedure was followed regarding the recusal decision, a review of the Town of New Castle’s Code of Ethics, and an analysis of relevant case law, indicates that there is indeed a conflict, and that John Buckley should absolutely recuse himself.
A town board member can’t act on a “transaction” in which he has an “interest”
Accordingly to the Town of New Castle’s Code of Ethics Section 9-3 (A) “No town official or employee shall act in an official capacity in connection with any “transaction” or contract in which he has an “interest”. An “interest” is defined as “a participation, connection or involvement of any sort which may result in a direct or indirect pecuniary or material benefit.” (Emphasis added.) A “transaction” is defined as “any activity, application (emphasis added) or proceeding which requires or may require an official act or action of a town official or employee or a town body.”
John Buckley is a real estate broker at Houlihan Lawrence and is a member of the New Castle Town Board. Estimates are that Chappaqua Crossing will generate hundreds of millions of dollars in sales from the 199 units to be offered.
On Houlihan Lawrence’s web site, they state they are “the largest independent residential real estate brokerage in Westchester.” They claim they are “#1 in market share at every price point.” www.HoulihanLawrence.com/AboutPeople.aspx. No doubt, Houlihan Lawrence is a major market share leader. And, no doubt, they will reap a major market share of commissions from this project.
Not only does this have the appearance of impropriety, but Mr. Buckley’s action on the developer’s application could very well result in a direct or indirect pecuniary or material benefit to him.
Case law stresses that “spirit of the law” must not be violated
As far as a review of the case law, the seminal case is Tuxedo Conservation and Taxpayers Association v. Board of Town of Tuxedo, 69 A.D.2d 320 (1979). In Tuxedo, town approval of a construction project was found to be invalid because one of the members of the town board had a pecuniary interest in the construction being approved. The town board member was an advertising executive for an advertising agency whose client was the parent company of the contractor seeking a construction permit. Because the town board member stood to obtain a pecuniary gain from the advertising revenue
if construction were allowed, the court found that the board member should have recused himself. While the town board member did not violate the letter of the law the court found “the spirit of the law was definitely violated.” Id. at 324. The court stated that the question is about interest and whether his vote was “prompted by the jingling of the guinea or did he vote his conscience as a member of the town board.” Id. at 325-36 (internal quotations omitted). The court found that the probability of the board member’s advertising firm receiving revenue was a real one and that the board member was clearly voting for his own interest. Id. at 326.
In Byer v. Poestenkill, 232 A.D.2d 851, (3rd Dept. 1996), the Court found that the issue is what level of personal financial interest warrant disqualification. The court stated that in “determining whether a conflict of interest exists, courts should take a case-by-case approach in looking to the extent of the interest at issue.” Id. at 852. Of the utmost importance is that “the public be assured that their officials are free to exercise their best judgment without any hint of self-interest or partiality, especially if a matter under consideration is particularly controversial.” Id. at 852-853.
Another case with applicable principles is Zagoreos v. Conklin, 109 A.D.2d 281, (2nd Dept.1985). In Zagoreos multiple conflicts of interest were found where board members were employees of the petitioner seeking board action. The court stated that “it is not necessary . . . that a specific provision of the General Municipal Law be violated before there can be an improper conflict of interest.” Id. at 287.
In Dudley v. Prattsburgh, NYSlip Op. (2009) (U), the Court found that one sale, from which a board member who was a real estate broker received a commission that occurred before voting did not constitute a conflict of interest. However, the court stated that a conflict of interest would occur if an official had an “ongoing financial or property interest” and the official “stood to benefit by the very vote being taken.” Id.
More than the appearance of impropriety
In the present situation, there is more than an appearance of impropriety. John Buckley has an ongoing financial interest in increasing the business share and revenue for his company Houlihan Lawrence. The potential income for Houlihan Lawrence and their brokers from this transaction is significant and real.
The vote at issue would directly advance Mr. Buckley’s pecuniary interests. Mr. Buckley’s voting would constitute a conflict of interest and would be improper. John Buckley should recuse himself from any and all decisions regarding Chappaqua Crossing. If he fails to recuse himself, any action approved by the Town Board will undoubtedly be subject to judicial review.
In the interest of full disclosure, I am the resident who started the petition against Chappaqua Crossing condos, in a letter to the editor published on August 20, 2010 in NewCastleNOW.org. (See “Open letter to the community: Petition opposing residential zoning at Chappaqua Crossing,” NewCastleNOW.org, August 18, 2010).