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Ethics boards: you've got it all wrong 

When Donald Youngman heard his boss, Henrietta Town Supervisor Jack Moore, make what he felt were inappropriate remarks, he filed a complaint with the town's ethics board — which, on the surface, seems like a logical course of action.

The circumstances behind Youngman's complaint are now well-known. Youngman, a 36-year town employee, overheard Moore talking to Henrietta public works staff, and referring to African Americans as "city cousins" — remarks that have been generally interpreted as a racial slur.

The ethics board dismissed Youngman's complaint, however, saying that it doesn't have jurisdiction to consider the matter. The outcome frustrated many people and provided fodder for town Democrats, who say that it's "another example of how Henrietta's town government is broken" under Moore.

But the board's decision was bound to be a letdown. Just as in other towns, villages, and cities across Monroe County and New York State, Henrietta's ethics board operates in an advisory capacity only. The board is geared toward helping municipal employees and officials avoid potential conflicts of interest. It doesn't enforce laws or mete out punishments; its most powerful tool is an opinion that town officials can use in decision-making.

"The way the media portrayed it was like the system was rigged, and they copped out, and they didn't do what they should have been doing," says Mark Costello, an attorney with Boylan Code who advised the Henrietta ethics board on the Moore complaint. "The truth is these guys made a really difficult decision because they knew it'd be ugly in the press."

State law requires municipalities to establish ethics boards and lays out the boards' fundamental duties. The members are appointed by the respective town boards, village boards, and city councils and they serve without pay.

But the reality is that ethics boards are often pulled into political disputes, and that distorts the public's understanding of what they do. The boards are often seen as arbiters of proper behavior for government officials when, in reality, their focus is narrow and their powers are limited.

The Henrietta ethics board doesn't have a complaint review process since it isn't intended for that purpose, Costello says. And it doesn't have the power to remove elected town officials from office — only a state judge responding to legal action by a town resident can do that. The ethics board dismissed the Moore matter because it is, essentially, an after-the-fact HR issue, Costello says.

The City of Rochester's ethics board was in the spotlight last year after City Council member Adam McFadden was appointed temporary head of the Rochester Housing Authority. It's a good example of how the boards typically work.

City Council member Jackie Ortiz requested an advisory opinion from the board on McFadden's appointment. She wanted to know whether McFadden's two jobs conflicted with each other, since City Council approves compensation for RHA employees.

She also requested opinions on whether there's a conflict in having a city law department representative on the RHA board, and whether it's appropriate for the wife of McFadden's legislative aide to serve on the board.

The board's majority ultimately decided that any conflicts created by McFadden's appointment were minor and could be addressed by McFadden recusing himself from voting on RHA matters.

McFadden eventually gave up the job at the insistence of the US Department of Housing and Urban Development. The agency said that his appointment violated conflict of interest provisions in HUD's contract with the city.

The board's review of the McFadden appointment was actually its second high-profile case in 2014. In January, the board was set to review Mayor Lovely Warren's temporary hiring of her uncle, Reggie Williams, as part of her security detail. Williams, who was retiring from the state police at the time, resigned before the review, which was then called off.

State and local ethics laws all contain anti-nepotism provisions. But those rules don't prohibit family members of elected officials from holding government jobs or receiving government contracts. Officials just can't favor family members in awarding contracts or hiring.

Henrietta Democratic Committee leader Simeon Banister says that his town's ethics board still should have taken a position on the issues raised in Youngman's complaint.

In a statement after the board's ruling, the committee broke out sections of the town's ethics code it says justified a review of Moore's actions. The board is given the power to review whether an employee is abiding by the standards of conduct spelled out in the ethics code, Banister says.

Specifically, Banister points to a clause that says that no Henrietta officer or employee "shall violate any town or departmental policy governing conduct by officers or employees." And the town employee handbook contains anti-discrimination policies, he says.

But the handbook also lays out a process for town employees to file complaints about co-worker behavior. In most cases, the complaints would go to the town supervisor, who decides whether disciplinary action is warranted. If the complaint involves the supervisor, it's routed to the human resources director, who is appointed by the supervisor.

"The line of responsibility always points back to the supervisor," Banister says.

For that reason, the ethics board was the appropriate authority to handle Youngman's complaint, Banister says. The complaint also points toward a bigger issue, he says, which is Moore's conduct toward employees. The supervisor is the subject of three complaints with the US Equal Employment Opportunity Commission, all of which allege derogatory or harassing comments and actions.

Moore, for his part, has said that employees are upset because he's running Town Hall like a business and they aren't used to that.

He's said he's sorry for the "city cousins" remarks, that he's taken diversity training, and that he has no plans to resign, though some prominent Republicans have said that he should. He's said that voters will decide in November whether he should keep his job.

Moore is up for re-election this year and faces a challenge from former Henrietta Supervisor Mike Yudelson. The contest is a rematch of the 2013 election, when Moore unseated Yudelson, who started the election season as a Republican and ended it as a Democrat.

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