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JUDI BOSWORTH

TOWN OF NORTH
HEMPSTEAD

Town Board

OFFICE OF THE TOWN ATTORNEY

Supervisor

VIVIANA L. RUSSELL
PETER J. ZUCKERMAN
ANGELO P. FERRARA
ANNA M. KAPLAN
LEE SEEMAN
DINA M. DE GIORGIO

Town Clerk
WAYNE H. WINK, JR.

TOWN HALL
220 PLANDOME ROAD
MANHASSET, NY 11030
(516) 869-7600
FAX (516) 869-7605

ELIZABETH D. BOTWIN

Town Attorney

Receiver of Taxes
CHARLES BERMAN

To:

Judi Bosworth, Supervisor

From: Elizabeth Botwin, Town Attorney


Date: April 27, 2016
Re:

Review and Recommendations

As you directed, I have reviewed Town policies and procedures concerning ethics, financial
disclosure, conflict of interest and procurement in light of the concerns that arose following the
revelation that the Towns outside counsel and counsel to the Board of Zoning and Appeals, Mr.
Gerard Terry, owed over $1.4 million in tax liens. You instructed that I should undertake a wide
ranging review and suggest any improvements that were warranted.
Following your direction, I submit this memorandum suggesting steps that the Town could take to
improve its practices. As discussed below, some changes have already been implemented. Others
will require substantial work and consideration by the Town Board.
Taken together, these recommendations seem most likely to make our Town government more
transparent and accessible. Overall, the goal of the recommendations is to promote ethical
behavior, increase access to our government and to its business, and minimize the opportunities
for conflicts of interest.
Ethics Code and Financial Disclosure Forms
You requested that the Board of Ethics review the Ethics Codes Financial Disclosure
requirements and make those recommendations it deemed warranted. The Board recommended
improvements that were enacted into law by the Town Board at its meeting on March 22, 2016.
The amendments revised the Towns Financial Disclosure form in two areas:

Contractors who are retained to advise Town Boards must now file financial disclosure
forms.

Filers must now disclose relatives who are employed by the Town.

Many other issues concerning the Ethics Code have been raised. Some of the issues are
substantive, such as whether the Code should be amended to bar employees and officers from

accepting gifts valued at over $50, as our Employee Handbook provides. Some of the issues are
procedural, such as how the Board of Ethics provides information to the Town Board concerning
the outcome of its investigations. Nassau County District Attorney Madeline Singas has suggested
that communities adopt the Model Ethics Code issued by NYS Comptroller Tom DiNapoli. At a
recent Town Board meeting members commented that the Ethics Code is unclear and Member De
Giorgio and the Supervisor discussed whether a Town Board meeting should be devoted to
reviewing the text.
In addition, recent events have highlighted an unnecessary lack of transparency in the Code of
Ethics concerning investigations into Financial Disclosure Form filings. The filings are not
confidential and are subject to release pursuant to the Freedom of Information Law, subject to
limited redaction. Yet the Code of Ethics imposes confidentiality requirements on the Board in its
review of filings. Certainly if the underlying filing is subject to disclosure, the public and their
elected representatives have a legitimate interest in knowing the outcome of a Board of Ethics
review of a disputed filing.
In my judgment, the many questions that have been raised suggest that the Ethics Code as a whole
needs review and updating.
Recommendation:
The Town should establish a working group to review the Ethics Code and recommend changes
to the Town Board. The working group should be composed of representatives of the Town
Board, the Board of Ethics, the public, and the administration. The working group can review the
Code in depth and propose changes to the Town Board, which would consider the proposals at a
public hearing.
Conflicts of interest involving relatives employed by the Town
Recent events, including the revelations concerning Mr. Terrys taxes and the arrest of a Town
employee for theft, have highlighted that many Town employees are related to one another and
some are related to Town consultants. These relationships can create an ongoing conflict of
interest that must be managed
The Town currently addresses nepotism through the Board of Ethics and in the Personnel
Handbook. The Board of Ethics interviews all new hires in a policy making position. As part of
that interview process, the Board requires new hires to list relatives working in the Town in order
to bring any potential conflicts of interest to light. The Board of Ethics recommended that this
area be explored in more depth, and the Town Board agreed to amend the Ethics Code to require
that all filers name relatives who also work for the Town as part of the Financial Disclosure form.
While the Board of Ethics will gather this information for those who file Financial Disclosure,
many Town employees are not covered by the Financial Disclosure requirements. Furthermore,
the Board of Ethics is not an administrative arm of the Towns government and there is no preexisting system for reviewing with the employees and with Town officials whether a disclosed
family relationship presents a potential conflict of interest.
The Town employee handbook gives guidance in this area by providing that it is against Town
policy for employees to supervise their relatives. Up to now, however, there has been no
mechanism in place to review whether the policy is being complied with and the Town has not
adopted a stand-alone policy addressing the issue.
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Recommendation
The Town Board should adopt an official policy on nepotism as part of the employee handbook.
Once the policy is adopted, Human Resources should train all managers in its implementation.
I recommend that the Town Attorneys Office and work with the Office of Human Relations to
draft a policy to be proposed to the Town Board. The policy must address at a minimum:

A prohibition on supervision of family members;


A prohibition on family members having a role in hiring, promotion or discipline decisions
concerning relatives;
An official system for disclosure of family relationships to supervisors so that potential
conflicts can be avoided;
Recommendations concerning how to address existing family employment situations
within the restrictions of the civil service titles that our employees are entitled to retain.

PROCUREMENT
In light of concerns raised by the Towns contracts with Mr. Terry and the disclosure of his
substantial tax debt, I reviewed the procurement of Mr. Terrys contracts. I have identified three
issues where the Town policies warrant reconsideration: competition in procurement for services,
reliance on long-time vendors and vendor disclosure requirements.
1. Competitive procurement
Mr. Terrys contracts were entered into without a competitive procurement. A request for
proposals (RFP) can identify alternative providers who could provide high quality services but
might never have solicited work from the Town on their own. Competition can also put price
pressure on an existing vendor even if there is no change in the vendor selected.
The procurement of Mr. Terry was consistent with law; there was no legal requirement to issue
RFPs for outside counsel services when the contracts were procured. State law does not require
that the Town use a request for proposals process for professional services, although it requires
that the Town adopt a procurement policy. The Towns procurement policy as it existed as of
January 1, 2014, strongly recommended but did not require that an RFP be issued for
professional services valued at over $20,000. Therefore it was permissible under the Towns
procurement policy to approve the 2014 and 2015 contracts with Mr. Terry without an RFP.
In August 2015, the administration proposed, and the Town Board adopted, the Towns current
procurement policy. Our policy now provides that RFPs are required for professional services
that will cost over $20,000. Therefore, the Town would now require an RFP for services such as
Mr. Terrys contracts and no change in official policy or procedure is required.
2. Long time vendors
There is a remaining practical concern. When a vendor has a long standing contractual working
relationship with the Town, there is substantial inertia about even the possibility of making
changes. When an outside advisor is doing a good job, Town departments do not want to
contemplate changing service providers. The outside advisor may also assume that things will
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continue as they have been. In January 2016, Town officials continued to work with Mr. Terry on
Town matters and as BZA counsel on the assumption that a contract would be forthcoming.
The administration actively solicited new vendors in 2014 for some services and found new
providers who could do higher quality work or do the same service at a lower cost. It takes an
institutional commitment to good procurement practices to continually open the door to new
vendors. This is a broader problem than just the example of Mr. Terrys contract. Many potential
vendors do not respond to governmental solicitations of bids or proposals. This administration
has consistently posted RFPs and bids on the Towns website, where they are picked up by the
State procurement newsletter, but these avenues not necessarily calculated to reach new vendors.
Bid specifications may be written too narrowly to induce effective competition. Moreover,
Departments sometimes do not follow required methods of procurement and the problem is not
uncovered until the contract comes up to the Town Board for authorization or, even worse, until
the vendor submits a claim for payment.
Recommendation:
I recommend that the Town dedicate resources to improving procurement practices:

Establish a senior advisor to oversee Town procurement. The advisor, with direct access
to the Supervisor, Commissioners and the Town Attorney, would be in charge of updating
the Towns approach to bids and RFPs to open the Town to new vendors, thereby
increasing price and quality competition. At a minimum, the procurement leader will
identify best procurement practices from around the country, find ways to engage potential
vendors on social media, and revise the presentation of our bids to make them easily
comprehensible.

Centralize the procurement that is now done in individual departments to further


professionalize the Towns approach to buying goods and services.

I do not recommend any amendment to the Towns current procurement policy.


3. Vendors Disclosure of Information
Mr. Terrys contracts were entered into without obtaining any disclosure of information
concerning the vendors background. A disclosure questionnaire can be useful in surfacing
potentially troublesome issues including lawsuits and conflicts of interest. That information can
help the Town determine whether it wishes to enter into a contractual or consulting relationship
with the vendor.
State law does not require that vendors complete any disclosure form. Under the Towns current
procurement policy, proposers who respond to request for proposals or a request for sealed bids
must complete a disclosure form.
The disclosure form that is attached to the procurement policy asks for information in the
following categories: adverse equal opportunity determinations; convictions and unscrupulous
practices; pending or threatened lawsuits; criminal misconduct; conflicts of interest; and, financial
disclosure. The disclosure form must be sworn to under penalty of perjury. The disclosure form
used in sealed bids is similar.

Because Mr. Terry did not submit a proposal in response to an RFP, he did not complete a
disclosure form.
Recommendation
Mr. Terry would have had to complete a disclosure form if he were responding to an RFP, which
would be required under the Towns current procurement policy. The disclosure form, however,
would not necessarily have been interpreted to cover the tax debts. Since the Town would want
to have this knowledge, I recommend that the Town revise and update the disclosure form to
make sure it addresses all the issues that are likely to generate conflicts of interest.