Re: Email dated May 31, 2010 Regarding Frank Rubino* (See Below)
July 19, 2010.
Dear Mr Aris:
The Ethics Board of the City of Yonkers received the above email from you regarding Frank Rubino accepting employment in an of-counsel position at the law firm of Harris Beach PLLC (“Harris Beach”) immediately after retiring as Yonkers Corporation Counsel. Your email asked that the Ethics Board consider whether such employment: (a) required a waiver from the Ethics Board (and if so, whether such a waiver was obtained) or (b) constitutes an appearance of impropriety.
The Ethics Board has considered this matter and has determined that no waiver was required, and that no conflict of interest or appearance of impropriety was created.
Relevant Law
The controlling waiver provision is Code of Ethics §C1A-10(C):
No City officer or employee shall solicit or accept a position of employment after termination of City service, from any person who received any financial benefit from an action or failure to act by that City officer or employee within the prior (1) year.
Analysis
Harris Beach serves as bond counsel to the Yonkers Industrial Development Agency (“IDA”). The IDA is a public benefit corporation and is entirely legally distinct from the City of Yonkers. The Yonkers IDA was created under §903 of Title 2 of Article 18-A of the New York General Municipal Law, and is governed under the enabling statutes set forth in Title 1 of Article 18-A. The IDA does not appear in the Yonkers City Charter. The jurisdiction of this Board does not extend to IDA employees or board members. The IDA is not part of the City budget. Its employees and officers are not part of the City’s civil service system. It is worth noting that Hawkins, Delafield & Wood LLP has served as the City’s bond counsel for over twenty years.
The Office of the Corporation Counsel has no role or function with the IDA. No action or failure to act by Mr Rubino resulted in any financial benefit to Harris Beach during the year before his retirement, or at any time that he served as Corporation Counsel.
The IDA retains its own General Counsel. The Corporation Counsel does not advise the IDA’s Board, nor provide direction to the IDA’s counsel. The Corporation Counsel does not review the invoices of the IDA’s general counsel, nor any of the IDA’s outside counsel (nor any other invoices nor any other matters for the IDA), nor has any role in selecting IDA counsel.
The City’s Board of Contract and Supply, which by law must approve all City contracts (City Code, §13-1) does not review any of the IDA’s contracts, including those for outside counsel. Likewise, the Corporation Counsel must approve all City contracts as to form, and the Corporation Counsel does not review or approve any IDA contracts.
The waiver provision of the Ethics Code has not been triggered, and there was no requirement that Mr Rubino for a waiver in order to accept the position at Harris Beach.
Further Rules for Post-Service Employment
The Ethics Code contains further safeguards with regard to post-service employment. Ethics Code §C1A-10(A) bars Mr Rubino from appearing before the City on behalf of another person for a period of one year from March 19, 2010. “Appear” is defined in the City Code as “communicating in any form, including without limitation, personally, through another person, by letter or other writing, or by telephone.” Id., §C1A-4(A). Additionally, §C1A-10(B) imposes a lifetime ban with regard to any matter the employee worked on while with the City, defining “works on” as, “substantially involved with the matter or personally supervises or directs how the matter is to be handled.”
Section C1A-10 of the Ethics Code is intended to address thoroughly all aspects of post-service employment for City employees. Reviewing that Section makes clear that no waiver was required and that Mr Rubino’s acceptance of the position at Harris Beach is fully in accord with the law.
Conflict of Interest
Because the Ethics Code specifically and thoroughly addresses the issue of employees leaving government, and the present case does not require a waiver, it would be inappropriate to find a conflict of interest or to apply the “appearance of impropriety” standard. The existance of a statutory inquire for determining whether a waiver is required implies that if no waiver is required in a particular case, then there is no conflict. The statute has clearly defined what constitutes a conflict.
Based on the above laws, and upon the information available to the Ethics Board, Mr Rubino’s acceptance of the position at Harris Beach is, in all respects, proper.
Thank you for bringing your concerns to our attention.
Sincerely,
Hon. Joseph F. Nocca
On behalf of the Yonkers Board of Ethics
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* Referenced (From Above)
TO: Hon. Joseph Nocca, Chair
Board Members
FROM: Hezi Aris, Yonkers Tribune
DATE: May 31, 2010
REGARDING: Waiver Granted Frank Rubino Permitting his Acceptance of Employment with Bond Counsel Harris Beach
Your Honor,
You are familiar with the departure March 19, 2010, of Frank Rubino from his employ as Yonkers Corporations Counsel. Mr Rubino was succeeded by Mark Blanchard by the unanimous approval of the Yonkers City Counsel on Tuesday, April 13, 2010, and sworn to office by Mayor Phil Amicone on Wednesday, April 14, 2010.
Mr Rubino’s employ may be or is simply construed to be conduct of impropriety unless he was given a waiver by the Yonkers Ethics Board. No such waiver has been found in my research.
Please advise if Mr Rubino divulged his employment prospect for employment at Harris Beach? And if he did, did he earn a waiver from the Ethics Board. And if he did so earn a waiver, at what meeting did this take place?
I should hope you will be able to consider discussing this issue at the June 10th meeting I learned about through your email to me today.
To make lifer easier for the Board of Ethics, I took the liberty to refer you to the section of the City of Yonkers Code of Ethics Mr Rubino is in violation. Is there a remedy for this? What is it? Mr Rubino has chosen to accept a position with a company he used to do business with as Corporation Counsel.
§C1A-10. Post Service Or Employment Activities.
A. Except as otherwise provided in this section, a City officer or employee shall not appear before the City on behalf of another person for a period of one (1) year after the completion of his or her City service or employment. This Subsection shall not prohibit a City officer or employee from being elected to a City office, being appointed to any City board or commission, being hired as a City officer or employee, or being paid by the City to appear as a witness in any proceeding on behalf of the City.
B. The prohibition set forth in Subsection A shall be permanent as to particular matters on which the City officer or employee personally worked while a City officer or employee. A City officer or employee personally works on a matter when that City officer or employee is substantially involved with the matter or personally supervises or directs how the matter is to be handled.
C. No City officer or employee shall solicit or accept a position of employment after termination of City service, from any person who received any financial benefit from an action or failure to act by that City officer or employee within the prior one (1) year.
D. Nothing herein shall prevent a City officer or employee from working for a federal, state or local government body or agency and, in that capacity, appearing before the City at any time after the completion of City service.
E. Any City officer or employee may request a waiver of the provisions of this section from the Ethics Board, as provided in Section C1A-36.
§C1A-11. Avoidance of Conflicts.
A City officer or employee shall not knowingly acquire, solicit, negotiate for, or...
Kindly,
Hezi Aris
Publisher / Editor / Talk Show Host
Yonkers Tribune, Westchester Herald, On the Level with Hezi Aris
