Grand jury: No crime in Benton job acceptance

District attorney says Orange County's inadequate ethics review is the culprit: Legislature still has option of giving fine

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Photos



  • District Attorney David Hoovler presents the grand jury's findings Wednesday (Photo by Edie Johnson)




  • The Chronicle looks at disclosure forms at the current county board of ethics office at 15 Matthews Street in Goshen. From left: Alexis Tarazzi, features editor; Pamela Chergotis, managing editor; Hema Easely, investigative reporter; and Susan Corsi, account executive.



The Chronicle and the ethics board

The Chronicle’s past experience of the Orange County Ethics Board has been discouraging, when it was contained in a tiny room in the now-closed government center.
The former clerk had no idea of what the Freedom of Information Act was, and regarded The Chronicle’s request to see financial disclosure forms as a breech of decorum.
The room was open four hours a week, and appointments had to be made weeks in advance. One small seat — like the kind you see in middle school, with the attached wraparound desk — was provided for researchers.
For the past two and a half years, the county website gave the shuttered government center’s address for the board of ethics. The new county executive, Steve Neuhaus, recently told The Chronicle that Orange County did not need an independent watchdog because it had a board of ethics and ethics code.
Donald Nichol of Jacobowitz & Gubits, LLP, in Walden, the longtime lawyer for the board of ethics, refused last week and this week to give The Chronicle permission to photograph or photocopy the disclosure forms of county officials, citing the county’s ethics code. The prohibition was upheld by a state court, he said.
But The Chronicle’s lawyer, Laura Handman, who represents The Wall Street Journal, The New York Daily News, The New York Post and numerous other news organizations in their First Amendment and freedom of information matters, said the state court upheld the prohibition on photocopying only at the State Ethics Commission and Temporary State Commission on Local Government Ethics. Archdeacon v. Town of Oyster Bay (2006) ruled that local ethics boards were subject to Freedom of Information Law (FOIL), and that “inspection and copying of annual financial statements, including the source of the official’s income and a delineation of investments, is the very type of information that the public has the right to uncover when looking into conflicts of interest.” State law trumps local law, Handman said.
Nichol said the board of ethics will consider a change in the local law with respect to photocopying when it meets Thursday night, as this paper goes to press.
Nichol said one of the reasons for withholding the disclosure forms is that they contain signatures. But Handman said signatures and other sensitive information, such as Social Security numbers, could be redacted, and that FOIL required their production in redacted form.
Gail Sicina, who recently joined the ethics board as chair, was very responsive to The Chronicle’s requests this week, even coming to the new board office on her day off so that The Chronicle’s editor, Pamela Chergotis, and four helper scribes could copy information from the disclosure forms — a process that took an hour but would have taken four times as long without their help.

By Edie Johnson
— The Orange County Grand Jury found that while no crimes were committed by a legislator who accepted employment with a County vendor, "there arose an appearance of impropriety that everyone agrees would have been best avoided."

The grand jury said "lack of training and lack of resources of the board of ethics contributed to the legislator putting himself in situations which are better avoided."

District Attorney David Hoovler on Wednesday summed up a stack of findings three feet high, with 935 pages of testimony from 20 witnesses. He pointed to a table full of documents submitted during the grand jury investigation. All that paper was directed at a conflict-of-interest charge made against county Legislator Leigh Benton of Newburgh after he accepted a short-term job contract with government center remodeler Clark Patterson Lee. Benton, who chaired the committee overseeing the county's buildings, had endorsed hiring the firm for the government center renovation.

Benton's name was never mentioned during the nearly hour-long press conference Wednesday because he was not found culpable legally. He was repeatedly referred to as "legislator" or "individual," with Hoovler emphasizing that a very faulty ethics advisory process was the real culprit.

Hoovler said the legislator's acceptance of the job offer was not against current law or ethics regulations. According to the grand jury report, Benton followed a list of actions required by the board but missed one step: writing a letter to the county ethics board about the matter then awaiting its response.

No response from ethics board
Benton did submit a letter but ever received a response because the letter was sent to the ethics board's lawyer, Donald Nichol, instead of to the ethics board itself. It circulated around but never got to the board commissioner until too late.

In the letter, Benton had asked for clarification of how the new job would affect his work as legislator. But he didn't get a response until the commissioner of the ethics board read about the issue in a newspaper.

For his errors in judgment Benton could still receive censure and a fine by the legislature. Legislators will also look more closely at his attendance at a gathering of area municipal officials, where he had signed in as a legislator but passed out business cards for Clark Patterson.

When the conflict became public, Benton gave notice to the architectural firm that he wouldn't be able to work for them. At that time he had already received $10,976 of the $60,000 annual salary he'd been promised to promote business and seek clients for the firm.

Ethics board needs major overhaul

Hoovler recommended massive changes to the county's ethics law and yearly educational briefings for legislators so that they understand their ethics responsibilities more clearly. In the past the ethics board was described as only advisory in nature. Legislators were encouraged to feel free to ask for advice without fear of recrimination or for the need for written protocol.

Benton's request sat unanswered for months, Hoovler said. The 72-page report of proposed ethics board reforms recommends a response within 10 days to any inquiry.

Other top recommendations: make county financial disclosure more thorough, expand the role of the ethics board, and allocate more resources to the board. Also, according to the recommendations, 21 legislators should not be left to rely on the advice of just one attorney. Hoovler said he hoped two additional attorneys, one for each primary caucus, should be made available.

Numerous actions showed that Benton had tried to follow the rules and did not intend to break any ethics laws, according to the report:

The legislator notified at least four other legislators of his intentions as well as the attorney for the legislature, the board of ethics, several county officials and a department head of the job offer.

There is no evidence that the legislator benefited in any way as a legislator.

The job offer was made months after Clark Patterson was chosen as architect.

The legislator clarified with Clark Patterson Lee that he would not be able to participate in dealings with any clients that had dealings with Orange County Government

The legislator terminated the employment as soon as a question arose.

The legislator made the attempt, via letter, to receive further guidance from the ethics board.

Recommendations
The grand jury recommended that the board of ethics should, in fact, continue the investigation into the legislator's actions, and that the legislature could still censure and fine him on the basis of the meeting he attended as a legislator while passing out business cards for Clark Patterson, and his vote on the full legislature choosing Clark Patterson's design on the same day he was offered the position.

Additionally, the report recommends greater transparency by making advisory board opinions public on the board of ethics website. It also recommends that financial disclosure statements be posted on the county website (see related story), and that gifts to county employees be limited to a yearly maximum of $75. Lastly, they recommend that not only should county officials refrain from soliciting employment from county contractors, but that county contractors be held to the ethics laws as well, and therefore refrain from offering employment opportunities to county employees.

Any further action to revising the procedures and the code itself would be followed through by the legislature itself, in coordination with other county officials.

The full grand jury report will be on the Orange County Website later this week.

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