ULSTER COUNTY OFFICE OF THE COUNTY EXECUTIVE VETO MESSAGE To: Victoria Fabella Clerk of the Ulster County Legislature From: Mica! Hein Wer Uiser Coty Exc Date: September 13,2018 Re: Resto No, 39, Dae August 1, 2018 ropes Local Law No, 18 Amending Ulster Coan Chae Se. 106, The Code of the County of Ulster See. 448 And the Ulster County Administrative Code See. A33-2, Board of Ethics Pursuant to Ulster County Charter Seetion C-12, Tam returning Resolution No. 331, dated August 14, 2018, with my veto Proposed Local Law No. 18 of 2018 raises profound public poliey concems, technical issues, and legal deficiencies. Although I have great respect for the legislative body and its process, when faced with this type of legislation I am left with no choice but to oppose it, a I stand with good government groups and citizens of our ‘community in full protection of our Charter and future generations. One of my most basic responsibilities is 0 protect the residents of Ulster County and this proposed law does exactly the opposite By granting future County Legislatures the power to appoint @ majority of the membership of the Board of Ethie, with no oversight or independent confirmation, and the power to remove members of the Board of this, the proposed local law would eliminate the checks and balances currently in place that were meant to ensure the Board's independence and neutrality. The net effect of this law is a disservice to our citizens and ‘opens the door to potential future corruption 1 feel strongly that all members of the Board of Ethics should face confirmation by a body separate from the ‘authority appointing them as they currently do. My appointees tothe Board have always faced confirmation bythe Legislature and have been unanimously confirmed, earning full bipartisan support. These checks and balances are important. They ensure that each member of the Board of Ethics is fully vetted, and that no ‘member of the Board of Ethis is beholden to any one person, one political party or one organization. The desize of both ofthis bill's sponsors to change this toa system where the Board is fully under legislative control is suspect at best and unfortunately, politically motivated at worst; and, quite simply, we are better than tha asa government. ‘The ultimate result of the proposed legislation would be the creation ofa pathway to any number fof unethical behaviors where a future Legislature can appoint the majority of the members to the Board of Ethics and remove any member expressing opposing views or whose opinion they simply do not ik. ‘The proposed Local Law will erode the independence of the Board of Bthics and the publie’s confidence in the body. [am mindful that many legislators may have been misinformed regarding the law and its consequences prior to their vore. It contains technical issues that will prevent it from operating in the manner represented by the sponsors. During a meeting of the Laws and Rules Committe, legislators stated that under the proposed. law, the two members of the Board of Ethics appointed by the County Executive will not be subject to confirmation by the Legislature, and then subsequently voted to adopt changes to the County's Code of Ethics specifying that only the legislative appointments to the Board would be subject to legislative confirmation However, the Committee let the Charter’s requirements for legislative confirmation unchanged. I also kept the proposal to add language to the Charter specifically requiring the County Legislature to vote on every nominee to the Board. What these confusing proposed changes mean is that, if enacted, the proposed local law will crete a conflict between the County's Code of Ethics and the Charter preventing the proposed Local Law from operating in the manner intended by the Legislature or represented to the public. Im addition, the process in developing this law resulted in incorrect sections being cited thereby being ‘contradictory and likely misleading the public. The version of the proposed local law that the Legislature presented to the public prior to its public hearing was entiled “A Locel Law Amending Ulster County Charter Section 44-8 and Ulster County Administrative Code Section A33-2,” and began with the statement that “Sections 44-8 of the Ulster County Charter and A33-2 of the Ulster County Administrative Code shall be amended as follows....” However. there is no section 44-8 contained in the Ulster County Charter. Anyone interested in learning about the law in order to comment on it at the public hearing was misdirected because they would not have found either that section or the cited text in the Charter. For example, the proposed Local Law purported to delete Charter sections (A)(3), (A)(9) and (B)(2); these seetions do not exist and, again, the public would have been unable to find them, Even ifthe public had ignored the numbering and done a search fon the cited language, they sill would have been unable to find it in the Charter. The absence of a correct citation isa critical technical flaw. The public should not have to guess at what the Legislature is attempting to ddo and government should, whenever possible, encourage the public's participation and listen tits voice ~ not stifle it ‘Compounding the confusion is the fact that several changes were made to the proposed Local Law after the public hearing was held giving the public no chance to comment. First, the reference to the correct Charter section, C-106, was included. ‘The Ethics and Disclosure Law was, forthe first time, included asthe target for ‘amendments in spite ofthe fact that its language had been previously recited verbatim. Additionally, language ‘was added indicating that no more than two members of the Board shall be from the same political party, language that was previously indicated as being expressly removed. Any one of these changes can be considered substantial by themselves, but taken as a whole, they represent a breakdown in the legislative process and do not represent the type of deliberate, reasoned and inclusive course the County Legislature rormally undertakes. Given that the changes went to the very heart ofthe legislation and that ethics isan area that the community is particularly interested in, the public should have been given the opportunity to comment 2fon the law in its final form, another technical flaw. In short, these changes were both substantive and substantial, not ministerial. ‘The proposed Local Law is also problematic as it conflicts with State law. Requirements for checks and balances in a local ethies board are addressed in State law. New York General Municipal Law § 808 dictates that the members of local ethics boards “shall be appointed by the county executive, .. subject to confirmation by [the legslature].” The State Comptroller was charged with administering the ethics laws atthe time it was passed and therefore, his opinion is accorded deference to ethics matters by courts. Ulster County previously ‘asked for the State Comptroller's expert opinion on whether the County could adopt a local law inconsistent with section 808 of General Municipal Lav. In @ formal opinion to our County Attomey, the Comptroller ‘emphatically seid no. He explained that the State act authorizing local ethics boards is expres: its provisions “shall supersede any local law, charter, ordinance, resolution, rule or regulation of any municipality .... No local law, ordinance, resolution, rule of regulation shall modify or dispense with any provision of [the Act)” (1964 NY LAWS Ch, 946). Thus, the Comptroller concluded, any local enactments which are inconsistent with the State law are prohibited. Proponents of the instant law have ignored the State Comptroller's formal guidance and have instead relied on ‘two informal opinions from the Attomey General. Both of those truncated opinions focused on whether section 808 of the General Municipal Law was a general law as defined by the state's Municipal Home Rule provisions. However, if the subject ofa state law is a matter of state concer, then the determination of whether a law is a ‘general law is rendered irelevant and need not be reached; a local law may not supersede it. Notably, ethics hhas been deemed a matte of substantial state concern (1964 NY LAWS Ch. 946) Lastly, I am cognizant that this Local Law is opposed by good government groups. The League of Women ‘Voters—a nationally recognized preeminent organization whose members helped draft our current Charter— thas expressed its opposition to the proposed local law in that it would remove checks and balances in the (Charter that were meant to guard against the Executive or the Legislature “packing” the membership of the [Board of Ethics, The League has suggested that the proposed local law would make it possible for the Legislature to manipulate the Board of Ethics for political gain. Likewise, former County Attorney Beatrice Havranek, who also played a pivotal role in drafting our Charter, has urged careful consideration of this law as it is her... strong belief that these changes are not inthe best interest of our residents, employees or officials.” 1 take these concers seriously. The individuals speaking against the resolution are those we have come to rely ‘on to ensure good government and to protect our Charter. I will not ignore their requests to veto this resolution |.am pleased to lear that following thei inital vote, some Legislators may have gained additional insights into this proposed law following the most recent public hearing and various discussions that would warrant 9 re- examination, I fiemly believe we are at our collective best, as @ government, when we are focused on helping. those among us who are most in need, fighting for equality and justice, and protecting our hard-working taxpayers with innovative solutions that have reduced taxes to levels not seen in almost a decade. In contrast, government is prevented from working towards the interests of is citizens when petty politics and individual ‘agendas are allowed to permeate the responsibility to govern | Took forward to working with the Legislature to address the challenging issues that face our residents and moving Ulster County towards a brighter tomorrow. In defense of our Charter and the great citizens of Ulster County, as the County Executive I stand with one of the preeminent good government groups in our nation, those who support responsible checks and balances in government and my dedicated colleagues on both sides of the aisle. Therefore, I return Resolution No. 331 with my veto,