Woodstock officials dispute ethics finding

Colleagues react

Mincing few if any words at the Town Board meeting, councilman Jay Wenk called the Ethics Board’s letter “stupid.” He added: “If members of the Ethics Board do not follow the ethics law, that is a reason for dismissal.” [Note: The volunteer members of the Ethics Board serve at the pleasure of the Town Board. Only the Town Board may impose penalties or disciplinary action recommended by the Ethics Board. The Town Board took no action at this week’s meeting on the ethics panel’s finding and, according to Woodstock supervisor Jeremy Wilber, is unlikely to do so in the future.]

Wilber criticized the Ethics Board not only for allegedly denying McKenna and Magarelli due process, but also for incorrectly surmising that the supervisor has the legal authority to speak for the town himself or to direct other officials to do so. He acknowledged that he recently sent the Ethics Board a note in which he referred to the panel’s members as the Queen of Hearts — an allusion to the summarily judgmental Lewis Carroll character. “A sentence before a verdict,” he explained in an interview.

“On June 26, guilty,” said McKenna at the board meeting. “This is like Guantanamo Bay. This is ludicrous.” Said Magarelli: “I am appalled that the Ethics Board hasn’t followed the law (by affording) an opportunity to respond or to request a hearing.” The councilwoman added in an interview, “From my perspective the most important thing is the absence of due process. All of this becomes ludicrous until the proper procedure is followed.”

Alone among the five Town Board members, councilman Ken Panza defended the Ethics Board’s finding, which he deemed an indictment rather than a verdict. Panza also maintained that elected officials were free to speak at public hearings conducted by boards other than their own, but not necessarily at regular meetings. In rebuttal, Wilber, among others, stated that Town Board members have routinely expressed their views on pending matters like the RUPCO project, while members of the Planning Board and other volunteer agencies have similarly spoken up at Town Board meetings.

Apart from criticizing the Ethics Board for failing to follow proper procedure in its finding, Wilber, Wenk, McKenna, and Magarelli variously took the panel to task for the craftsmanship of the June 26 letter. The document’s shortcomings, they said, included its failure to specify the subsections of the ethics law that Magarelli allegedly violated and the panel’s determination that McKenna and Magarelli should “refrain from intercepting (sic) meetings of other boards.” Wilber decried the peculiar use of intercepting as “a violation of the English language.”

The four Town Board members found irony in the Ethics Board’s pronouncement that McKenna and Magarelli should familiarize themselves with the town’s ethics law and in the panel’s request for timely action by council members in response to the finding. They also noted the presence of typographical errors in addition to the misspelling of Wilber’s name.

Only an esoteric procedural step permitted the full Town Board to discuss the ethics finding publicly. The finding directed McKenna and Magarelli to recuse themselves from any such discussion. Meanwhile, Wilber has stated that he, too, would recuse himself because he has endorsed McKenna and Magarelli’s candidacies for reelection in the fall. That left only Wenk and Panza eligible to consider the finding; as a result, the board lacked the quorum of three members that is required for any action to be taken.

When the agenda turned to a related matter — proposed amendments to the ethics law, for which the board scheduled a public hearing on August 13 — Wilber announced that town attorney Rod Futerfas, citing a judicial precedent, had suggested that the board could proceed under the so-called Rule of Necessity. According to Wilber, the rule holds that if a public body should act on a matter before it, but cannot because it lacks a quorum as a result of recusals, all recusals should be nullified or suspended. The rule was invoked.

Ethics Board responds

In interviews before and after the Town Board meeting, members of the Ethics Board explained their investigation of the complaint involving McKenna and Magarelli and discussed their work on other matters, including the amendments to the ethics law that are currently under consideration. The ethics panelists acknowledged experiencing frustration in some of their dealings with the Town Board, including their research-based recommendations on the proposed amendments, which they believe that Wilber, in particular, has ignored.

In a June 26 interview with this reporter, immediately before they finalized their finding in the case involving the council members, Reynolds, Breitkopf, and Heilbrunn outlined the procedures that they followed in the case. Beginning on February 18, they said, they held more than eight meetings in which they conducted approximately a dozen interviews, including, in some instances, follow-up sessions with the same individual. All of the interviews, including the March 18 conversations with McKenna and Magarelli, took place in executive sessions that were closed to the public.

Breitkopf described the panel’s procedure. “We get an inquiry, do interviews, and decide if the inquiry has merit. If it does, the Ethics Board investigates,” she said. “The March 18 meeting (with McKenna and Magarelli) was only (for the purpose of) fact finding. Only afterward, when the Ethics Board determined that the case had merit, we interviewed witnesses and tried to find common threads among the interviews.”

She continued: “It is important for people to understand the process, the need for executive sessions, so that members of the public aren’t afraid to participate. Confidentiality and executive sessions are very important to us and for the process to work. This was the first time in our tenure that we had anyone react so intensely.” Breitkopf declined to identify the person to whom she was referring.

[Town agencies, including volunteer boards and commissions, are required to keep minutes of their meetings and submit them to the town clerk for publication. As of July 10 the only minutes of an Ethics Board meeting that were posted on the town website related to the March 18 session. When asked at the June 26 interview about the scarcity of minutes, Reynolds replied, referring to Heilbrunn, “Our acting secretary is doing the best that she can. There have been a lot of meetings, a computer has been down, and people are busy. She’s doing a good job, but she doesn’t live in a bubble.”]

Heilbrunn and Reynolds discussed recent developments in the current case in phone interviews on July 9 and 10. Speaking separately, both members of the Ethics Board defended its procedures. They maintained that McKenna and Magarelli, upon receiving the June 26 letter, could have contacted the ethics panel to request a hearing or other opportunity to respond to the finding, although the ethics law appears to put the onus on the Ethics Board to offer such remedies.

“We followed a procedure, as in the past,” said Reynolds. “They (McKenna and Magarelli) certainly were eligible for due process. They could have called us or (otherwise) contacted us, but they did not.” Alluding to the panel’s determination that the council members should familiarize themselves with the ethics law, Reynolds added, “Maybe we should have spelled it out.”

Said Heilbrunn: “There is no reason why they couldn’t call us or come to us and tell us that they didn’t think there was merit (to the allegations). I don’t feel that this is right. I don’t understand why this was made public. It’s like a circus. We’re just a fact-finding group. We did our research and passed it on to the Town Board to do as it wishes.” On July 9, Heilbrunn noted that the Ethics Board’s recommended penalties for McKenna (a public apology to the Planning Board, the town, and the Ethics Board) were slightly harsher than those for Magarelli (an apology only to the planning agency and the town) because the councilman was “pushing” and “aggressive” in his support of Cucina.

Reynolds defended other facets of the finding in the current case. She dismissed the typographical errors as minor and the failure to specify Magarelli’s violations of the ethics law as a mere omission. [The relevant section of the law comprises 14 subsections, ranging from “Representation” and “Appearances,” which McKenna allegedly violated, to “Investments,” and “Nepotism” which clearly do not apply in the case.] The chair of the ethics panel also maintained that the meaning of intercepting is self-evident.

“We were guided by the law,” said Reynolds. McKenna offered a different take on the matter. “I feel that the Ethics Board has unfairly and improperly smeared my name, and I intend to clear it,” said the councilman.