LETTERS

Trustee opposes Ethics amendment

Staff Writer
The Chronicle Express

After reviewing the proposed change to the Penn Yan Code of Ethics, I cannot support this proposed change. I base this on the following information and urge my fellow board members to reject this proposed law.

The current Penn Yan Code of Ethics states that no municipal officer or employee may participate in any decision or take any official action with respect to any matter requiring the exercise of discretion, including discussing the matter and voting on it, when he or she knows or has reason to know that the action could confer a direct or indirect financial or material benefit on himself or herself, a relative, or any private organization in which he or she is deemed to have an interest.

This is a major tenet in just about every code of ethics in the nation and is the primary reason that the governing boards of the various municipalities with in NY State adopt and adhere to a Code of Ethics. The proposed law to change the existing Penn Yan Code of Ethics would eliminate this requirement for volunteer fireman, if they are a trustee or the mayor, and will allow them to vote on matters related to the Penn Yan Fire Department even though the Attorney General of New York has published an opinion that the trustees of a village who are also volunteer firefighters must recuse themselves from acting with respect to fire department issues.

I believe exempting a subset of village board members from having to adhere to the Code of Ethics, while requiring the remaining board members to adhere to the Code of Ethics should be prohibited. Before I could support this I would need to see a law or judge’s order that says that it is legal to do this.

I also have three issues with “Section 4 Legislative Findings” of the proposed change to the Code of Ethics.

First this section states that being a member of the Penn Yan Fire Company creates an apparent conflict of interest on the part of a Trustee or Mayor in voting on matters affecting the Penn Yan Fire Company. The 1991 NY Op Atty. Gen. (Inf) 91-21 makes it clear that trustees who are volunteer firefighters in fact do have conflict of interest in these matters.

Second this section implies that the reason we must eliminate the requirement for volunteer firemen to adhere to the current Code of Ethics (see Section 9-7 paragraph B(3)) is because it is desirable for members of the Board of Trustees to also be able to be volunteer firefighters.  However the author of this proposed change does not provide any reason why volunteer firemen cannot be members of the Board of Trustees nor does the author site any law that prevents volunteer firemen from being a member of the Board of Trustees. The reason that author does not provide any rationale for this change, is because volunteer firemen can be and are already members of the Board of Trustees. There is no law or any other reason that prevents volunteer firefighters from being a member of the Penn Yan Board of Trustees.

I will acknowledge that members of Board of Trustees must recuse themselves when a matter comes before the board in which they may have an interest. This should apply equally to all Board of Trustee members. I remind everyone that the 1991 NY Op Atty. Gen. (Inf) 91-21 makes it clear that trustees who are volunteer firefighters do have a conflict of interest in matters concerning the village fire department and concludes that trustees of a village who are also volunteer firefighters must recuse themselves from acting with respect to funding of the fire department.

I also understand that should the majority of the village board be volunteer firefighters it would be impossible to obtain a majority should all the volunteer firefighters recuse themselves. However, the existing Penn Yan Code Ethics Section 7 paragraph (b)(1) addresses this problem. I also point out that 1991 NY Op Atty. Gen. (Inf) 91-70 recognizes that in those cases where volunteer firefighter comprise the majority of the voting membership of the village board where recusal of the trustees and/or mayor who are also volunteer firefighters would result in the inability to obtain a majority, that this opinion allows the firefighters to vote on the issue at hand. Accordingly, should the majority of Penn Yan village board be volunteer firefighters they would be able to vote on these issues. This opinion does not give the volunteer firemen the right to vote on matters regarding the fire department unless majority of the board are volunteer fireman.

Third,  Section 4 Legislative Findings of the proposed change to the Code of Ethics states that the1994 NY Op Atty. Gen. (Inf) 94-31 determined that inactive members of a fire company or fire department are still considered volunteer firefighters since those members retain "benefits" from the fire company and/or fire department as a result of such "inactive" membership.  I do not believe that this correct.

In response to Robert J. Allan, Esq, Village Attorney for the Village of Camillus, NY request for an opinion, the then Assistant Attorney General in Charge of Opinions in 1994 who issued the opinion, states that Mr. Allan said that on the Camillus Village Board that two members of the then current board of trustees are associated with the Camillus Fire Department. The mayor has the status of lifetime member of the fire department, effectively retired from active service. Under the Camillus Fire Department by-laws any person in good standing with 20 years of active service becomes a lifetime member. Lifetime members may choose to participate in 12 drills a year, thus maintaining active service, and have the option to respond to emergency calls. A trustee is currently an active fireman who has been voluntarily placed on inactive status. You have indicated that he is also past president of the Firefighters Association of the state of New York. Inactive members of the Camillus Fire department, including the mayor and trustee, have all the privileges of a regular member except they are excused from all fire, rescue and ambulance calls and practices. Inactive members may not hold any line office.

As you can see this 1994 statement by the then Assistant Attorney General in Charge of Opinions is about the situation within the Camillus Fire Department and does not necessarily apply to all volunteer fire departments.

A review of the current Penn Yan Fire Department Constitution and By-laws states that the membership shall consist of all active members of the different companies comprising the Fire Department of Penn Yan, New York. Furthermore these bylaws also state that any delegate to the village convention must be an active fireman. Each company shall cause their delegates to deliver a letter to the convention notifying them of the names of their delegates, and the proper credentials of their nomination. The chairman of the convention shall be elected from the delegates of the company making the nomination for Chief. The secretary can be nominated from any of the other delegates. A roll call vote of each delegate shall be made. A nominee must receive a majority vote of the delegates present. If a nominee is unsuccessful, their name can only be submitted to the convention one more time. If unsuccessful, a second time, that nominee will not be eligible for a period of two years. In the event of a vacancy in any position of any Chief, the fire council shall reconvene the village convention, to vote on the nomination of the candidate for the vacant position. If the convention had been adjourned to a set date the nominations will be considered at the next scheduled village convention.

As indicated above, only active members of the different companies are allow to be members of the Penn Yan Fire Department and that only active members are allowed to vote for officers and all officers must be active members. Nowhere in Penn Yan Fire Department Constitution and By-laws does it mention inactive firemen or honorary firemen or any other status of firemen other than active firemen. Thus inactive firemen and/or honorary firemen and/or retired firemen do not have a say in any matter that has to do with the Penn Yan Fire Department budget, purchases of fire department equipment, procedures that must be followed, and/or regulations that the members must adhere to. In the Penn Yan Fire Department these matters are the sole purview of membership which consists solely of active fire fighters. Furthermore the Penn Yan Fire Department Constitution and By-laws does not codify any benefits that accrue to inactive firemen or honorary firemen or any other status of non active firemen.

I am aware the inactive and retired firemen who were former members of the Penn Yan Fire Department are allowed to use the facilities in the fire hall such as the weight room, bar and etc., without having to contribute any more funds for this privilege that an active member would have to contribute for these privileges.  I am also aware that the inactive firemen and retired firemen are allowed to attend Fire Department sponsored dinners/meals without contributing any more funds that any active member would have to contribute to attend these dinner/meals. The question then becomes do these privileges rise to the level such that they would influence a trustee or mayor, who is also an inactive firemen or retired firemen, to vote against their conscience. If this is the case the current Code of Ethics, section 17 would prohibit any trustee or mayor, whether or not they were an inactive firemen or retire firemen or just planning to attend a Fire Department social event(s), from attending the event(s). If any trustee or mayor, who is inactive firemen or a retired fireman, feels that the benefit afforded to them will not or could not influence their vote, they have every right attend these events without having to recuse themselves and would be incompliance with the Code of Ethics.

Some may ask; “Wouldn’t inactive or retired firemen be likely to vote in favor of the fire department and would not this be a violation of the code of ethics?” The answer is no. It is not a violation of a code ethics to vote your conscience on any issue including fire department issues as long as you or your immediate family does not receive personal or private gain as a result of your vote.

Others might ask; “Couldn’t an inactive fireman or retired fireman that is attending a fire department function be lobbied to support the fire department?” The answer to this is probably yes. However, it is perfectly legal for anybody, including volunteer fireman, to lobby a trustee or mayor to support their position as long as they do not violate the code of ethics while lobbying for their position on any given issue that may come before the village board.

Accordingly, I do not believe that inactive or retired former volunteer firefighters are members of the Penn Yan Fire Department and I also believe that the benefits these individuals enjoy are not sufficient to create a conflict of interest as long as the current Code of Ethics is adhered to by all village municipal officers and employees.

My last concern is that the definition of a Volunteer Firefighter contained in Section 9-2 of the proposed change to the Code of Ethics is not in accordance with the definition of a Volunteer Firefighter as stated in New York Firefighter Benefit Law. This law in Section 3 defines a Volunteer Firemen as quote “an active volunteer member of a fire company” unquote.

New York General Municipal Law § 215 defines Volunteer Firefighter as quote “a person who has been approved by the authorities in control of a duly organized volunteer fire company or volunteer fire department as an active volunteer firefighter of such fire company or department and who is faithfully and actually performing service in the protection of  life  and  property  from  fire  or  other emergency, accident or calamity in connection with which the services of such fire company or fire department are required.”

I believe in New Your State it is clear that a Volunteer Firefighter is an active volunteer firefighter and it would be inappropriate for Penn Yan or any other village with in New York State to define an inactive firemen or a retired volunteer firemen as an active Volunteer Firefighter.

Wayne Davidson

Penn Yan