The Grand Jury incorrectly stated that I was required to file the county financial disclosure form instead of the state form.
(Reference to specific individuals in the narrative to follow is based on Newsday’s identification of individuals referenced in the Grand Jury Report. These individuals include: Judge Alfred Lama, Paul Sabatino, Ed Romaine, Ben Zwirn, and Anton Borovina).
It is no coincidence that the saga related to my financial disclosure forms, and all that followed, began very soon after I switched my registration from the Democrat to the Republican Party. Suddenly, I was questioned by the media about why I had been filing a New York State form – as if I were shopping for the most favorable disclosure form. (No one had seemed concerned for the prior four years when I was a Democrat.) I responded that it was not a matter of choice –– I was required by state law to file the state form because I was a member of the New York State Pine Barrens Commission. The fact that I was required to file the state form was not noted in the Grand Jury report. Attached is the letter proving I was required to file the state form.
Newsday inferred in its articles that I was referred to in the Grand Jury Report as County Official E. The Grand Jury reported testimony on Page 25, “that because County Official E served on a state board, he ‘would like to file’ the state form.” This distorts the entire situation. This sentence, standing alone, gives the reader the impression that I had a choice, and would like to file the state form, instead of a county form, if only I could get a pass from the ethics board. Were the Grand Jury to have seen the documentation provided herein, that I was required to file the state form and that the Ethics Commission was required to accept it, it would remove this insinuation that I was somehow seeking a special favor from the Ethics Commission.
Early in my administration, a fellow county employee, who also had to file the state form, informed me that the state considered its form more comprehensive and, therefore, once it was filed, the county form was considered redundant and there was no need to fill one out. I asked him how he knew this. He said he was told such by the Suffolk County Ethics Commission. This important fact was never reported by the media or mentioned in the Grand Jury deliberations.
Before my request for an opinion was ever filed, Ethics Commissioners had already told another employee that the filing of the state form had to be accepted by the county. An Ethics Commission official, therefore, did not craft a special decision just for me as suggested by the Grand Jury. (Newsday purports that official H in the report is Judge Alfred Lama, the Executive Director of the Ethics Commission.)
Once I heard from the fellow employee that the filing of the state form complied with county requirements, I wrote to the commission just to confirm that the information given to me was, in fact, accurate. I received a letter indicating that indeed the filing of the state form would suffice.
The most renowned ethics expert in the state, Mark Davies, Executive Director of New York City’s Conflict of Interest Board, and Co-Chair of the Government Ethics and Professional Responsibility Committee of the New York State Bar Association and a drafter of the New York State Ethics Laws, was never mentioned in the report. Instead of hearing from Davies, the Grand Jury was reliant on testimony from Paul Sabatino, who had a massive conflict, in having been the subject of ethics charges lodged by my administration. They also heard from his attorney, Anton Borovina. (Both had told Newsday that they testified, with Borovina admitting he gave commentary on the ethics law.) Borovina had incorrectly opined on the disclosure issue in the past and now the Grand Jury was relying on those same inaccuracies.
While there was a cavalier mention of some contrary opinions to that of Sabatino and Borovina, the report never mentioned Davies’ name, nor quoted any of his statements that definitively proved that the Ethics Commission had to follow the state mandate and accept the state form. In prior documentation, Davies stated:
Since State law supersedes County law, the County has no power to mandate that the County Executive (or indeed, any other officer, or employee of the County who files a financial disclosure report pursuant to Pub. Off. Law Section 73-A) file a separate county financial disclosure report with the county. State law MANDATES that the County accepts a copy of the state financial disclosure report in lieu of the county form. The County has no discretion in this matter.
After stating, on numerous occasions with emphasis, that I did something wrong by not filing the county form (it is was stated there was an “obligation to file the more comprehensive Suffolk County form…”), the Grand Jury report contradicted itself in a short sentence, saying that whether the county form had to be filed “remains an open question with advocates on both sides arguing their positions.”
Actually, there is not debate amongst the experts. Concurring with Davies was Barry Ginsberg, then-Executive Director of the New York State Commission on Public Integrity and Steven Leventhal who has served as an advisor to both the Nassau and Suffolk Ethics Commissions. Ginsberg stated the following:
The General Municipal Law does not require local officers and employees to file duplicative annuals financial disclosure statements if they are already subject to the filing requirements of the public officers law …
Both Davies and Leventhal, in their capacity as Ethics Commissioners in their respective jurisdictions, have ruled for particular employees that the filing of their state form was sufficient.
Yet a fourth ethics expert, Wayne Hawley of the New York City Conflicts of Interest Board, agreed stating
It has been [our] interpretation of and practice under state and local financial disclosure laws to accept the state financial disclosure report of any required city filing, as compliance with local disclosure requirements.
None of these experts were referenced. Their testimony, to my knowledge, was not even elicited. (See attached for statements from all four ethics experts).
Readers can be misled by the specific wording of the Grand Jury report. On page 25, it is stated that “New York law permits individuals who work for New York state to file the New York State financial disclosure form with local municipalities.” But once again the report did not mention the state requires certain other individuals, such as myself, to file the state form.
In what was one of the most egregious errors of the report, it was stated that “Suffolk County law clearly mandates that the county disclosure form be filed.” The drafters of the report were obviously unaware that this does not pertain to those who are required to file the state form, since state law clearly notes that those individuals satisfy the requirements of the local filing by filing the state form.
The Grand Jury was also incorrect when it cited the case of Suffolk County Ethics Commission vs. Neppell, to suggest that the state law did not supersede the county. This would not be surprising since they relied on the conflicted testimony of Borovina and Sabatino on this item. A reading of the case clearly shows that it was misapplied. Neppell was not a person required to file a state form and, in fact, filed no forms at all. I fell under the statute requiring state filing, and once the state form is filed as I had done, the state law considered the county filing redundant.