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 12-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.”
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,” said Freeman.
Public Safety Committee members emerged from their confidential huddle
on April 27, after approximately 10 minutes, with a typewritten list of
12 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.
Gartenstein 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. 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.”
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