Mayor: Board of Ethics Missed the Boat

Mayor Josh Cohn, who was away on vacation during the last Council meeting, must have gotten a lot of rest because he came out swinging on Wednesday night. Cohn spent just over ten minutes taking the Rye City Board of Ethics to task on its report that found the Mayor and three council members violated the City’s Code of Ethics.

Cohn gave no ground, saying “the Board of Ethics missed the boat. Nice people, bad job. It’s failure of an opinion lends support to the worst suspicions now fashionable in our dismal public discourse. It levels those suspicions at four hard working volunteers.” His discourse reviewed and then refuted the various assertions leveled by the Board of Ethics.

While most of Cohn’s invective was directed at the Board of Ethics, he did save a bit for the three Council members that took their concerns to the Board. “And what can I say about my three unwilling and complaining Council colleagues who refuse to act?,” said Cohn. “Nathan, Henderson and Fontanes? I won’t dignify their conduct with speech.”

While Council is bitterly split over process and procedure, it appears its members on both sides of this schism favor better protection for trees across the City. “A new draft tree law should soon be public,” said Cohn. “And I thank everyone for their patience.”

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We are posting a transcript of the Mayor’s comments and sharing the video from the meeting (remarks begin at the 5:00 minute mark).

Mayor Josh Cohn comments on the Board of Ethics at City Council March 1, 2023, as transcribed:

I wasn’t able to be at the February 15 Meeting due to a pre planned vacation. But there was much I must rebut relating to the effort to mitigate by moratorium, the clear cutting of approximately 40 mature trees on an unkempt lot at Turf Avenue and to accelerate revision of our tree law. 

To describe this event, in the simplest terms, for the first time ever, I learned of a substantial tree clear cut before it happened, and only because it was about to happen outside my back window. On the same day, I learned the city’s jurisdictional position and the possibilities for relief, notified the deputy mayor and recused myself. 

The clear cut took place one day later, before there was any Council action or even a meeting. After the clear cut, I rejoined Council deliberation. Several with my council colleagues had scheduled a meeting, the sole purpose of which was to schedule a later public hearing date. I joined that meeting. In hindsight, I know I did the right thing. And that my pro-action colleagues Carolina Johnson, Ben Stacks and Julie Sousa, also did the right thing. 

What was our choice? Ignore what we knew and make no effort to mitigate? We would have been roundly criticized for that without a doubt. Let me cut to the chase by going to the board of ethics so-called confidential advisory opinion, requested by three council members unwilling to take action against the tree destruction that I had discovered.

The board of ethics opinion displays profound disrespect for process, fact and for the people whose conduct it criticizes. Plus, it disenfranchises my neighbors, it cuts them off from timely counsel assistance. It cuts them off just because they are my neighbors. 

Here are a few headlines about the board of ethics opinion. The board of ethics spoke to none of the people that it criticizes. In fact, the board refused to hear us – a fatal flaw from a fairness and accuracy perspective. 

The board apparently did not watch the video of the February 6 meeting, which could have answered some of its questions. The factual recital in the opinion is full of misstatements and omissions. Example: Why was I involved at the outset? Missing facts. I was the person who discovered that clear cut was about to happen. I looked out my back window, saw a man walking in the woods, went out and spoke to him and learned he was pricing the clear cut to take place within a week. 

That’s where the extraordinary rush – the board of ethics words – to do something begins. That’s when the clock started ticking. Additional obscured fact. A special meeting to be noticed immediately was suggested by corporation council to try to beat that clock. It was not my suggestion, though it was a good one. 

It’s my understanding the deputy mayor and pro-action Council members sent the meeting notice out the next day. The board of ethics suggests there wasn’t a pre-existing concerted neighbor outcry to the council before the deputy mayor called the meeting. But how could there be given the compressed timing? Missing fact. There couldn’t be a pre existing outcry. I had just discovered the clear cut about to happen. Neighbors were just learning about it. And they were learning about it primarily through former city council member Emily Hurd, herself a neighbor who wasn’t telling them that they needed to email or call the council. Why should she? She was communicating her own concern and theirs directly to the council including to unwilling council members and she had every reason to think her voice would be respected. 

Additional missing fact. There has already been massive public concern expressed in Rye about clear cutting and tree removal in general. That public concern is a constant and helped to motivate our recent legislation curbing flat lots and steep slopes and our tree saving motive was articulated at that time. 

To sharpen the point, the Turf Avenue lot looks a lot like a flag lot, but is not primarily by virtue of prior subdivision. Both site specific and general public concern about the clear cut was also evident in the February 6 meeting though called by the Deputy Mayor on 72 hours notice. 

The board of ethics wonders why similar speed wasn’t invoked in the past which are two prior moratoriums, though both those moratoriums had distinctly different factual settings. Missing facts. In those two cases the council did not have noticed of an instantly immediate threat. In the flag lot and steep slope case the clear cut and subdivision had already happened. 

Yet even so many on the council fought for but did not achieve a moratorium with retroactive effect. In the case of rock chipping and blasting, we were aware that we had adequate time to move by regular process. 

Finally, the board seems to assume there was some special meaningful benefit to me in seeking a moratorium. I’m doubtful, but if there was, the remedy was my recusal, not the recusal of the whole council. So why did I voluntarily recuse the very same first day I’ve mentioned? The words directly impacted by the clear cut are used in the board of ethics opinion, though I have never used them. Personal benefit also is used. This is worth looking at. The ethics cases distributed by the corporation counsel show financial or employment benefit to be at issue in those cases, and to potentially justify recusal of a member of the deliberative body. But those cases do not support recusal in the whole body. 

Let’s remember what was at stake behind my house. Moratorium will not save the unkempt woods. A new tree law would not save the unkempt woods. It likely would just moderate the extent of tree removal. In any case moratorium or not. New tree law or not. A new home will be built in place of the woods. Many would argue the new home will improve my property value, certainly as a replacement for the unkempt woods and whether or not a few more trees are saved. 

My interest was only to save as many trees as possible. And I recused myself to make sure that my having that interest was okay. Even imagining great financial benefit to me, though, the remedy is that I recuse. To say that even after my recusal immediate action by the rest of the counted Council is tainted is unreasonable. And to say that even after the clear cut has been done, the February 6 meeting was tainted is long past unreasonable. 

These are just a few headlines. The board of ethics missed the boat. Nice people, bad job. It’s failure of an opinion lends support to the worst suspicions now fashionable in our dismal public discourse. It levels those suspicions at four hard working volunteers. It cuts my neighbors off from Council help because they are my neighbors. 

And what can I say about my three unwilling and complaining Council colleagues who refuse to act? Nathan, Henderson and Fontanes? I won’t dignify their conduct with speech. A final footnote: I became mayor more than five years ago wishing to get things done, and your city has been getting things done.

Some people alternately tell us to slow down and then chide us for being too slow. Yes we’ve had to invest time and energy in dealing with COVID. Yes, responding to Ida and putting flooding first has cost us substantially in both staff and council time. In 2020, just before COVID I promised a review of the tree law.  Flag Law restrictions and steep slope restrictions in early 2022 were in part a result of that review. Continuing work on the tree law was shouldered aside this past fall by, among other things, attention to flooding, our capital projects program, rock chipping and blasting Law amendments, a new leaf blower law and by the annual budget cycle. A new draft tree law should soon be public. And I thank everyone for their patience.