KINGSTON – Revisions to the scandal-plagued City of Kingston’s
Code of Ethics are quietly working through the Law and Rules Committee,
behind closed doors under the confidential cloak of “legal advice.”
A secret meeting held April 27 with corporation counsel lawyers invoked
“attorney-client privilege” to produce an 18-point list of
recommended changes to the city’s municipal ethics rules.
That document quickly became draft Local Law #3 of 2016, brought before
the common council on its May 3 agenda, but kicked back to committee,
pre-empting the first legislative reading.
The procedure is unusual, because the closed session which commenced the
revisions happened at a Public Safety Committee meeting – but now
will be sent to Law and Rules on May 17.
When the matter was first assigned, Kingston’s Laws Rules chairman
was caught under the cloud of repeated ethics allegations, and has since
resigned from office.
“Initially, given that [former 2nd Ward alderman Brad] Will was
chairman of Law and Rules at the time, while there was a complaint pending
against him, it [the revision] could not go to Laws and Rules,”
explained Assistant City Attorney Dan Gartenstein. “It was sent
to the next logical committee, which is Public Safety. Henceforth, when
further revisions are considered, it will go to Law and Rules, were it
should have been in the first place,” Gartenstein added.
Obscure provisions buried deep within the New York State Open Meetings
Law permit public officers to seek confidential legal advice, temporarily
suspending the proceedings. The maneuver is distinct from executive session,
with different guidelines.
According to numerous advisory opinions issued by Robert Freeman, executive
director of the New York State Committee on Open Government, attorney-client
privilege must be formally invoked by the clients, and be strictly limited
to questions related to ”legal proceedings.”
“The mere presence of an attorney does not signify the existence
of an attorney-client relationship… often at some point in a discussion,
the attorney has stopped giving legal advice and a public body may begin
discussing or deliberating independent of the attorney. When that point
is reached, the attorney-client privilege has ended and that the body
should return to an open meeting,” Freeman stated.
Public Safety Committee members emerged from their confidential huddle
on April 27, after approximately 10 minutes, with a typewritten list of
18 revisions to the ethics code. Third Ward resident and gadfly Joseph
DiFalco, accompanied by wife Ellen, observed the April 27 irregularities,
and said he suspects impropriety. “The corruption is still in this
room,” DiFalco told the common council Tuesday night.
Gertenstein briefly summarized the revisions at the common council caucus
Monday night. “This is probably going to take four or five months
of amendments,” he said, noting the method of appointed ethics board
members is being re-examined. “The mayor has requested that we change
that to the council picks three, and the mayor picks three,” Gartenstein
said.
“We eliminated the section that calls for criminal sanctions,”
Gartenstein added. “We have eliminated the revolving door provisions,
recognizing that the purpose of this legislation is to address conduct
of present city officials and employees,” he said. “After
you leave office or employment, there is no restriction,” he said,
calling the section unenforceable. “As it stands right now this
is a completely unworkable document, we are trying to rein it in, not
expand it.”
