McKenna and Magarelli responded that they attended the planning session not to represent or support the interest of Cucina or any other private party, but only to ensure that the zoning law was applied properly. The council members noted further that they and other town officials routinely attend meetings of volunteer boards and commissions and exercise their First Amendment right to express their views on local issues, as their constituents expect them to do.
Moreover, McKenna and Magarelli protested that the Ethics Board had itself flouted the ethics law by failing to offer them a hearing before reaching a conclusion in the case. [See Section 71-8 (6) of the ethics statute.] Formal contact between the Ethics Board and the council members occurred on only one occasion during the investigation — on March 18, when the panel interviewed McKenna and Magarelli separately in what all parties agreed were preliminary discussions aimed at determining whether the complaint had merit.
Correspondence between Teri Reynolds, the chair of the Ethics Board at the time, and McKenna supports that understanding of the purpose of the interviews. In a March 10, 2013, email, Reynolds describes the upcoming March 18 meeting as “fact finding” in nature; the email also cites the relevant sections of the ethics law. In a March 11 email, Reynolds writes to McKenna, “At this point we are researching a possible problem…nothing more.” She reminds the councilman that the ethics panel discusses its business only at “appropriate ethics board meetings” and not by email or over the phone.
Process and outcome
In the recent interview, however, Breitkopf maintained that the March 18 meetings with McKenna and Magarelli constituted a “hearing.” For the benefit of the accused parties, she said, the Ethics Board elected to conduct the hearing at the beginning of the investigative process — rather than at the end, as the ethics law appears to stipulate, although the statute’s language is ambiguous — and to continue the hearing throughout the investigation. In all other respects the Ethics Board followed the letter of the law, she said.
By conducting the hearing at the outset of the probe, said Breitkopf, the Ethics Board sought to inform the council members about the complaint at an early stage and thus avoid confronting them with the accumulated evidence at or near the end of the procedure.
“We think that process stinks — ask everybody else (first), but don’t tell the accused anything,” she said, adding that McKenna and Magarelli were welcome to approach the Ethics Board with fresh evidence or information at any point in its deliberations. “Bill and Cathy had an opportunity to jump in and meet with the Ethics Board at any time. The accused need to take responsibility, but they didn’t take the responsibility to say, ‘We have more to tell you.’ We never concluded that hearing. Effectively, we had an open hearing for them for four months.”
Procedural matters aside, said Breitkopf, the Ethics Board’s central finding was indisputable, even without the supporting testimony of witnesses: the council members violated the ethics law by attending a meeting of another town agency and intervening in the matter at hand.
Questions remain
Left unanswered are some questions that touch on basic tenets of jurisprudence: Does a verdict’s validity depend on the process that was followed to obtain it? Must accused parties be afforded a formal opportunity, under specified conditions, to respond to the charges and evidence against them before they are judged guilty? If a law is found to be deficient, can it serve as a sound basis for judgments of guilt or innocence?
Other questions arise from the case. If the ethics law prohibits town officials from expressing their views at meetings of agencies other than their own, are the officials free to voice those views in every other setting, such as a news conference outside the meeting room? Can the presence of a Town Board member at an agency meeting have an intimidating effect on members of that agency, since in many cases such volunteers serve at the pleasure of the council?
In recent interviews Magarelli and McKenna denied again that they had violated the ethics statute. “I feel that (Breitkopf’s) interpretation of the law is flawed. It hasn’t been interpreted that way before. Town Board members have attended meetings (of other agencies) for as long as I can remember,” said Magarelli.
Said McKenna: “I was there (at the Planning Board meeting) on my own behalf, seeking information about a case. I’m not supposed to represent other interests if I attend a meeting. At the Planning Board meeting I asked questions about the process, as opposed to supporting Cucina’s expansion. I wasn’t there representing (Cucina) or taking sides.” The councilman added that Robert Freeman, the executive director of the state Committee on Open Government, has expressed support for the right of elected officials to speak freely on issues of interest to them and their constituents.
If last November’s election served as a referendum, of sorts, on the ethics case, Woodstock voters rendered a clear verdict. McKenna, Magarelli, and Wilber, finishing in that order, won landslide victories in their bids for reelection. The Town Board’s agenda for 2014 includes a review of proposed changes to the ethics law.
