Ethics code amendment raises doubts in Penn Yan

Gwen Chamberlain

Should members of a fire company who are elected village trustee or mayor be permitted to vote on issues that might financially benefit the fire company?

What if by those members recusing themselves, there aren’t enough votes left to act on an issue? Furthermore, how do you define a member of the fire department, or for that matter, someone who might benefit from action regarding the department?

The village’s existing ethics code, updated in late 2010 from the 1970s-era version, calls for officials to recuse themselves from action on matters from which they might benefit.

But at next week’s village board meeting, a public hearing on an amendment to the code will be held. The amendment changes the language so a trustee or mayor who is a volunteer firefighter member of the Penn Yan Fire Company can act on issues relating to the fire department or fire company.

Three of the village’s six trustees — Willie Allison, Bart Winslow and Mike Christensen — and Mayor Robert Church are all members of the fire department. Christensen is considered an inactive honorary member.

If all four recuse themselves, that would leave Trustees Rich Stewart, Christine Christensen and Wayne Davidson to vote — not a quorum from a seven person board. If Mike Christensen, the inactive honorary member, is not considered a fire department member for the purpose of voting as a trustee, and the other three fire department members recuse themselves, the remaining four trustees (Stewart, Christensen, Christensen, Davidson) would have to vote unanimously for any action to be approved.

Davidson, who first sponsored the current ethics code last summer, strongly opposes the amendment, saying he feels the current code addresses the question. “I just want to make sure the law is followed,” he said, adding that opinions from the State Attorney General’s office support his opinion.

A 1991 opinion stated, “We conclude that trustees of a village who are also volunteer firefighters must recuse themselves from acting with respect to the establishment of a service award program for volunteer fire fighters and with respect to the funding of the fire department.”

In 1994, a similar opinion from the Attorney General’s office stated, “We conclude that members of the village board of trustees who also are affiliated with the volunteer fire department should recuse themselves from voting on those portions of the budget that affect the fire department. The board of trustees may, however, establish exceptions to this rule if the public interest would be served.”

That opinion is cited in the reasoning behind the proposed amendment of the Penn Yan code that was presented by Village Attorney Ed Brockman at the February board meeting.

This January, the fire department received an opinion from Syracuse attorney David Garwood of Scicchitano & Pinsky, LLC, advising the board, “Either weigh the expected conflicts of interest against the need to have these three active members on the volunteer fire department active roster and pass a local law authorizing the board members who are also members of the fire department to act on matters pertaining to the fire department that come before the village board; or, pass a resolution amending the village code of ethics to allow the mayor and village board members who are members of the fire department to vote on resolutions pertaining to the financial matters of the fire department.”

Church has also received an opinion that Mike Christensen can be considered a member of the fire department.

John Galligan, who was the New York Conference of Mayors expert on fire department issues until his recent death, wrote, “My conclusion is that this individual, an active honorary member of the department, is a member. He may not respond to emergencies, but he is engaged in other departmental activities and the only way that occurs would be if he were a member of the department. For instance, fundraising is a department activity in which department members engage. Provided the fundraising activity has been authorized by the Village Board, department members are covered under the disability insurance policy which the Village secures in the event of an injury, as they are for various other department activities identified in §5 of the Volunteer Firefighters Benefit Law.”

Davidson is not the only trustee who has expressed opposition to the amendment. Trustee Rich Stewart voted against setting the public hearing for the amendment, and explained in an email, “This law would change our Code of Ethics to make it that any trustee who is a fireman, active or inactive, could vote on all issues dealing with the fire department, including ones that they would receive a direct or indirect benefit. I don’t think that would be in the best interest of the people of Penn Yan. Other trustees who have even the slightest possibility of having a conflict of interest must recuse themselves. I’m on the Penn Yan Library Board and I recuse myself from any library issues.”

Davidson, who wrote a letter to the editor about his position, (See the entire letter at right, above) says he wants to see village residents turn out for the public hearing on March 15.

“How do you find out what people want if you don’t hear from them?” he asked.