The Board has been asked to render an opinion as to whether a Town employee, with the current position as Principal Account Clerk in the Department of Housing and Community Development, may hold an executive position on the board of a local civic association.
Pursuant to the civic association website, the association “is established to promote the Civic welfare of Medford by giving our citizens a voice and representation with local officials and business entities, while also providing a forum which allows all citizens to voice their concerns.” The website has a section entitled “Government Items,” and the only matter listed thereunder is a land use application that is pending before the Town Board of the Town of Brookhaven. A review of the civic association meeting agendas on the website shows that four (4) meetings were held since September, 2021, and included the review of four (4) land use applications pending before the Town Board and the Planning Board.
The employee provided further “duties” of the position, which include:
1. Commenting on land use issues, and providing written and oral statements to the Town Board and the Planning Board;
2. Discussing “quality of life” issues with relevant Town Departments;
3. Working with local officials to support community activities.
Though the employee would serve in a volunteer capacity as an executive of the civic association board, the Board finds the following Code provisions relevant to its decision:
§ 28-5(F) Private employment in conflict with official duties.
(1) No Town officer or employee, during his or her tenure as a Town officer or employee, may engage in any private employment, including the rendition of any business, commercial, professional or other types of services, when the employment:
(a) Can be reasonably expected to require more than sporadic recusal and abstention pursuant to §28-5C;
(b) Can be reasonably expected to require disclosure or use of confidential information gained by reason of serving as a Town officer or employee;
(c) Violates §805-a(1)(c) or (d) of the General Municipal Law; or
(d) Requires representation of a person or organization other than the Town in connection with litigation, negotiations or any other matter to which the Town is a party.
(2) Representation. A Town officer or employee shall not represent any other person in any matter that person has before the Town nor represent any other person in any matter against the interests of the Town except in matters involving collective bargaining.
(3) Appearances. A Town officer or employee shall not appear before any agency of the Town, except on behalf of his or her own constituents or on behalf of the Town.
(4) Avoidance of conflicts. Town officers and employees shall not knowingly acquire, solicit, negotiate for, or accept any interest, employment, or other thing of value which would put them in violation of this Code of Ethics.
(5) Inducement of others. A Town officer or employee shall not induce or aid another officer or employee of the Town to violate any of the provisions of this Code of Ethics.
Town Code §28-5(1)(B) states:
The proper administration of the government of the Town of Brookhaven requires its officers and employees, whether elected or appointed, paid or unpaid, including members of any administrative boards, commissions or other agencies, to be impartial and free from conflicts of interest, or even the appearance of conflicts…
Pursuant to §28-5(F)(1)(a), an employee may not hold an outside position that can be reasonably expected to require more than sporadic recusal and abstention. In this situation, since at least 50% of the last civic association meeting agendas included matters that would require the employee to recuse himself, the Board finds that the proposed position as an executive board member does not comply with the Town Code.
Furthermore, §28-5(F)(d), §28-5(F)(2), and §28-5(F)(3), prohibit an employee from holding a position that requires representation of an organization other than the Town in connection with any other matter to which the Town is a party. This would prohibit the employee from participating in all primary duties and responsibilities of the position, as the employee has set forth, to wit:
1. Appearing before the Town Board and/or Planning Board, and providing any written or oral testimony on land use applications on behalf of the civic association.
2. Discussing “quality of life” issues with relevant Town Departments on behalf of the civic association;
3. Working with local officials to support community activities on behalf of the civic association.
This prohibition would also exclude the employee from acting as “representation with local officials,” which is a stated purpose of the civic association.
It is the Board’s opinion that holding an executive position on the board of the civic association, even though a volunteer position, would pose a conflict of interest pursuant to the Town Code of Ethics. The stated purpose of the civic association, as well as the meeting agendas, show that most issues before the civic association board involve Town matters, which would require the employee to recuse himself from the majority of civic association board meetings and decisions. Furthermore, the employee’s duties as an executive board member pose a direct conflict of interest in that the employee can not represent an organization in a matter to which the Town is a party. Therefore, the Board finds that holding the position as an executive civic association board member would constitute a violation of the Code of Ethics.