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).
This is not the first ethical issue involving John Buckley. When the Town Board was considering a moratorium on new Real Estate offices in downtown Chappaqua Mr. Buckley was an advocate and sitting member of the Town Board.
In another incident there were questions about his influence in helping securing permission for the move of his employer, Houlihan Lawrence, to new offices on South Greeley Avenue.
Bravo Mr. Greenstein! Well done, well researched and certainly correct. As we begin to peel back the onion that is our Town Board we should see what has really been going on here and in other matters. Chappaqua Crossing is probably the most important issue at hand but let us not forget other instances where “our” Town Board has used bad judgment and our tax dollars. In recent postings on this website we learned that the Board approved $200,000 for a new Gazebo for Rec Field. I put a 1500 SQ Ft addition on my house with a bathroom (plumbing), a family room, and guest room complete with running water, electricity, and air-conditioning for under $200,000. Sorry if I digressed but the people of our community must wake up and understand that these people are elected officials and must represent our interests! I hope we keep these issue on the front burner come election time because its time to vote them out!
I am a long time resident and am personally opposed to the development at Chappaqua Crossing. That said, I disagree with Mr. Greenstein both in content and in tone. Does Mr. Buckley’s firm have any relationship or understanding with the developer? If not, then it seems his alleged pecuniary gain is nothing more than conjecture. And none of the case law supplied supports recusal where the potential for gain is so tenuous. By this logic, any town board member engaged in painting, house cleaning or any home service would also stand to gain from the development. The same for tutoring the additional students, restaurants to feed the additional residents – it is a slippery slope.
As to tone, I think it is important to remember that our Town Board is a group of volunteers that work hard on our behalf. We may not always agree with their decisions, but they deserve our gratitude and respect. I am not aware of any misconduct by Mr. Buckley which would justify denying him that benefit of the doubt.
I appreciate Mr. Greenstein’s impassioned defense of our town’s interests. I have signed his petition and strongly encourage others to do the same. But I also appreciate Mr. Buckley’s generous contribution to our town’s well being and urge everyone to remember that we are neighbors united in interest to do what is best for New Castle.
Mr. Buckley should absolutely recuse himself. The conflict of interest is obvious and the New Castle Code of Ethics demands it.
To lets take a deep breath – I read nothing derogatory about Mr. Buckley in Mr. Greenstein’s letter. The fact is that the biggest and most active real estate firm in our town and in Westchester would certainly stand to gain from a development of hundreds of new dwellings. Houlihan Lawrence need not have a relationship or understanding with the developer for this to be inappropriate. No exclusives exist any longer and everything is multiple listed. Therefore everyone must conclude that Chappaqua Crossing if approved for residential, would certainly benefit Mr Buckley and his firm. That is significantly different from a house painter or tutor that may benefit from a trickle down effect a long way down the road. . That is a lawyer’s argument you make and we already have enough of them!
Mr. Buckley may be a wonderful, generous, and great individual but he is certainly and absolutely conflicted. He must recuse himself.
Most upsetting is Supervisor Gerard’s response and the fact that just town counsel Clinton Smith was consulted. I witnessed first hand Mr. Smiths comments and behavior at the Chapp Meeting weeks ago and I wonder who he works for – the town or the developer?
Does a house painter, house cleaner, tutor or restaurant owner get 6% of the sales price as compensation for their services? Would you agree there’s an appearance of impropriety? Based on the FOIL response I just received a few hours ago, even the town of New Castle recognized a potential conflict when the Chairperson of the Board of Ethics wrote a letter to Mr. Buckley on July 7, 2008 which states “we suggest that you be particularly attuned to the risk of a conflict because of your status as a broker”. And, by the way, I agree 100% that the Town Board deserves our gratitude and respect, and everyone should absolutely do what’s best for New Castle. Thanks for signing the petition.
FYI The Town Board members ARE NOT VOLUNTEERS. While the compensation is small, it is still over $10,000 each per year. The Supervisor gets paid over $30,00 per year. The information can be found in the town budget.
Clinton Smith’s and Barbara Gerrard’s denial of John Buckley’s obvious conflict of interest and their adamant opposition to his recusal reveal the importance of his positive vote to Smith’s and Gerrard’s agenda on Chappaqua Crossing.
Smith clearly revealed his position, and his less than stellar regard for the law, when he denied public access to a public meeting on Aug. 10 and when he challenged and tried to intimidate the man trying to gain public access for those kept outside with, “What is your name?”
We find the remarks of “Let’s Take a Deep Breath” defending Buckley so vigorously and opposing his recusal somewhat suspect. He(?) claims to be opposed to CC and to have signed the petition, hmmmm.
His(?) inane analogies are not worthy of response. They are silly.
It is obvious that he is not a lawyer since he does not know case law.
Can’t help wondering who he(?)is???
Agree with YUP. Who does Clinton Smith work for, the town or the developer?
His statements and actions are always in defense of SG.
I am not a town Historian, but this residential development – Chapp Crossing – if approved would be the largest residential buildout in recent historry – perhaps ever. The largest real estate brokerage company in Westchester and New Castle (and all other brokers) would certainly greatly benefit from this massive supply of new housing to be sold (brokered at 6%). So of course Mr. Buckly’s company and he DIRECTLY will reap financial rewards. This is unquestionably a conflict of interest and he must recuse himself. Troubling is the fact that it is up to him to do so. Town Supervisor Gerard should see the obvious conflict here and she and Clinton Smith should wake up and have Mr Buckley removed in this matter. There is no slippery slope here. It is simple common sense. Comparisons to house painters, tutors, etc are absurd and trivializes the discussion.
Mr. Buckley should recuse himself for many reasons, the major concern is, of course, ethics.
But who, in this town, is going to want to use the agency of Houlihan Lawrence to sell their property if he doesn’t do the right thing and recuse himself?
Agree with “Mr. B, recuse yourself” for ethical and business reasons.
Mr. Buckley should not have to risk the necessary goodwill as a real estate broker to serve on the board and to render a decision on CC where there is an obvious conflict of interest as confirmed by the attorney, Mr. Greenstein.
Does he realize that not recusing himself also affects his fellow brokers at Houlihan Lawrence? Is that fair to them?
I hope that Ms. Gerrard announces Mr. Buckley’s recusal, which we all know is inevitable, at the beginning of the Tuesday meeting so there will be no time wasted on that subject.