Rye Mayor Josh Cohn and three City Council members filed suit against the City’s own Board of Ethics in State Supreme Court on Tuesday afternoon, charging that the Board “acted in excess of its jurisdiction” and its actions were “an abuse of discretion” and “irrational and arbitrary and capricious.” The suit comes in the wake of the Board of Ethics’ February 13th Confidential Advisory Opinion regarding the Council’s actions surrounding tree legislation. The Councilmembers joining Mayor Josh Cohn in the suit are his three allies Carolina Johnson, Julie Souza and Ben Stacks.
“We started visiting with lawyers with expertise in government ethics, problems, and universally got the response that this was on its face a screwed-up opinion,” said Cohn. “The critique we got back was that our board of ethics was fundamentally unmoored from its starting place in our city code and that there was a lot to be corrected.”
The Board of Ethics’ February opinion was issued by Chair Beth Griffin Matthews (a former councilwoman) and members Edward B. Dunn (a former mayor) and Edward J. Stein. Because of the circumstances around the tree legislation at the time, Board of Ethics members City Manager Greg Usry and City Counsel Kristen Wilson recused themselves.
The lawsuit charges that, among other things:
- “The Board has exceeded its limited confidential advisory role and effectively sought to prevent duly elected City Council members from fulfilling their oath and legal responsibilities.”
- “The Board has also conducted a pseudo-investigation rather than provide advice in this situation, thus going well beyond its limitations, since the Board has no legislative grant to conduct such investigations.”
The suit says Cohn and three council members were doing exactly what they were supposed to do as elected officials. “Simply put, that is what occurred here,” says the lawsuit filing. “Like-minded duly elected political office holders, after receiving communications from constituents, believed that the long-discussed need to address the clear cutting of trees justified a special meeting and entertainment of a clear-cutting moratorium. This is not the stuff of an ethical breach, or the appearance of one.”
The papers even echo the famous quotation of US Secretary of Labor Raymond Donovan under President Regan, who after being acquitted on grand larceny and fraud charges said “Which office do I go to to get my reputation back?”
“… The poor handling of the matter allowed the Board’s infirm Opinion to be portrayed by the local media as a breach of ethical duties, when it clearly was not. Unlike the Secretary Donovan situation from 1987, today with the advent of social media and internet search engines, the damage to the Petitioners is arguably worse and permanent,” says the lawsuit.
What Do Mayor Cohn and Councilmembers Johnson, Souza and Stacks Want?
The lawsuit is asking the Court to rule that the Board of Ethics was both over its skis in its jurisdiction and that its decision making was flawed. It is also asking for attorney fees and “Awarding Petitioners such other and further relief as this Court deems just, proper, and equitable.”
How the Board of Ethics Will Respond?
Prior to the suit being filed, letters were exchanged between the parties, so we know the City’s Board of Ethics refused to modify its opinion after attorney Karl J. Sleight of Lippes Mathias LLP, counsel for Mayor Cohn et al., sent a May 15th letter demanding as much.
In a June 6th letter to Sleight of Lippes Mathias, attorney Mark W. Blanchard of Blanchard & Wilson LLP representing the City of Rye Board of Ethics said “The Board sees no beneficial outcome for any party if this matter proceeds to litigation. The full record is highly unlikely to be seen as favorable to your clients.”
It goes on: “The full record will likely exacerbate the concerns relating to the impact the actions of a volunteer Councilmember may have on the professional lives of the Councilmembers. The litigation itself, between volunteer members of the Rye City Government, will be seen as unseemly. Furthermore, the litigation defense of the Board’s actions will be funded by taxpayers’ dollars, something that many citizens are likely to view as a waste of City resources and taxpayer money.”
The next City Council meeting is Wednesday at 6:30pm (June 14th). The Council will need to approve funds to hire outside counsel so the City’s own Board of Ethics can defend itself from the lawsuit from the Mayor et al. Given the Mayor, all Councilmembers, the City Manager and the City’s Corporation Counsel have all been involved in various events up to this point, it will be interesting to what unconflicted party is able to approve these funds.
Note: We corrected a typo in our story. The line in the June 6th letter from Blanchard now correctly says, in part: actual letter says: “The full record is highly unlikely to be seen as favorable to your clients.”