SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
-------------------------------------------------------------------------------X
JOSEPH MALONEY,

Petitioner, DECISION/ORDER

-against- Index No. 19-1355

R.J.I. No. 55-19-0636
THE ULSTER COUNTY BOARD OF ETHICS, Richard Mott, J.S.C.

Respondent.
---------------------------------------------------------------------------------X
Petition Return Date: September 16, 2019

APPEARANCES:

Petitioner: Allan B. Rappleyea, Esq.

Corbally, Gartland and Rappleyea, LLP
35 Market Street
Poughkeepsie, NY 12601

Respondent: John J. Greco, Esq.

1 Albany Avenue
Kingston, NY 12401

Mott, J.

Petitioner, an Ulster County legislator in this Article 78 proceeding moves to

vacate/annul Respondent-Board’s December 31, 2018 Findings of Fact and Conclusions of

Law (Findings) determining three violations of the Ulster County Ethics and Disclosure

Law (EDL) and its order (Order) imposing sanctions, as in excess of its lawful authority,

arbitrary and capricious and unsupported by substantial evidence. Respondent opposes.

Background

In December 2017, Petitioner solicited an ethics opinion from Respondent in

consideration of his wife’s employment as an auditor with the Ulster County Comptroller’s
office, (Comptroller’s office). Respondent issued its opinion stating that Petitioner should

“recuse himself from any discussions and from voting on any matters pertaining to the

Ulster County Comptroller’s Office including those concerning funding,” citing EDL § 44-4.

Thereafter, a complaint issued alleging, in two separate charges (A and B), that

Petitioner, as a member of the legislature’s Ways and Means Committee (WMC) and in a

floor vote, approved a contract between the Ulster County Executive and the Civil Service

Employees Association (CSEA), in violation of EDL §§ 44-4(A) and (B), since Petitioner’s

wife, in addition to her employment with the Comptroller’s office, is a CSEA member.

The EDL states that a county officer is prohibited from taking,

“any action in a matter which he/she knows or has reason to know may provide a
personal financial benefit or secure unwarranted privileges or exemptions for…an
immediate family member,” EDL § 44-4(A);

and EDL § 44-4(B) requires such officer to recuse him/herself when his/her action, “may

benefit [an immediate family member…] financially or otherwise, or give the reasonable

appearance of a conflict of interest or impropriety.”

In a third charge, (Charge C), Petitioner is accused of violating EDL § 44-4(B) when

he advocated, in the Law and Rules Committee (LRC) of which he is not a member, to

restore funding for the confidential secretary position in the Comptroller’s office.

On November 5, 2018 a hearing was held at which the latter appeared with counsel

and both parties submitted legal briefs. On December 2018, Respondent issued its

unanimous Findings sustaining Charges A through C.1 The Findings state that in addition to

arguing for the restoration of the Comptroller’s confidential secretary position, Petitioner

1 The Board found insufficient proof to sustain two additional charges.

2
“called for more scrutiny to be applied to all confidential secretaries in the county and

alleged that the position was eliminated because of ‘politics’”.

The Board imposed a $7,000.00 fine and recommended that the County Legislature

suspend Petitioner for three-months without pay with said sanctions to be waived if

Petitioner resigns from his position as legislator by January 10, 2019.

Board’s Composition

The EDL creates Respondent, a five-member board appointed by the Executive and

confirmed by the County Legislature which has jurisdiction over both current and former

county officers. EDL § 44-8(C). Said legislation dictates that no more than two of the

Board’s members may belong to a single political party, that all serve at the pleasure of the

Executive and it authorizes the Board to render advisory opinions and determine violations

of the EDL after a hearing, or an opportunity for same, EDL § 44-8(4)(d).

The EDL provides that when the Board finds a violation it shall,

“after consultation with the head of the department or appointing authority for the
officer or employee, issue an order either imposing such penalties as provided for
by this chapter as it deems appropriate or recommending such penalties to the head
of the department or appointing authority.” EDL § 44-8(C)(4)(d).

EDL § 44-7(B) authorizes the Board to impose a fine, which becomes final thirty days

thereafter, if not modified, vacated or suspended, whereupon same is subject to judicial

review in an Article 78 proceeding. However, the EDL restricts its authority to warn,

reprimand, suspend or remove a county officer or employee to “the appointing authority or

body authorized by law to impose such sanctions.” EDL § 44-7(D).

Procedural Background

Petitioner reserved his substantial evidence argument pending Respondent’s filing

of the certified record. Thereafter, the Court directed Respondent to submit a certified
3
transcript of the proceedings, including the hearing referenced in its submission, and a

supplemental briefing schedule was set. Letter Order dated August 7, 2019.

Parties’ Contentions - Record

Petitioner claims that the Respondent’s failure to provide a transcript of the hearing

constitutes a violation of EDL § 44-8 (C)(4)(b), which states that “the Board shall hold or

direct a hearing to be held on the record to determine whether such violation has occurred,”

thereby meriting annulment of the Respondent’s determination. Petitioner proffers his

March 2019 email request for such transcript and refers to the Board’s statutory obligation

to provide same.

Respondent’s counsel states that its Findings are based entirely upon the

documentary evidence attached to the opposition affidavit of Derek J. Spada, Esq., (Spada),

Respondent’s chair. Same includes certified copies of the legislative meeting/session at

which acts complained of occurred. Further, Respondent’s counsel states that there is no

transcript or recording of the hearing, since no testimony was taken and Petitioner was

present and represented by counsel, who failed to request a stenographer or a recording of

same, or object to the lack thereof. Finally, Respondent contends that the full record is

before the Court and is sufficient to satisfy the substantial evidence test.

Discussion

CPLR § 7804 (e) directs a respondent to file a certified transcript of the record of the

proceeding being challenged with its answer, and an audio recording does not satisfy said

requirement. Captain Kidd's Inc. v New York State Liq. Auth., 248 AD2d 791, 792 [3d Dept

1998]. However, a disciplinary proceeding is void “only when there is some error that

taints the entire proceeding and would strike at fundamental concerns such as jurisdiction

4
or bias of presiding officers.” Wiggins v Bd. of Educ. of City of New York, 60 NY2d 385, 389

[1983]. Such errors “undermine the validity of the whole proceeding because they call into

question the power or neutrality of the hearing officer or removing entity or because they

effectively preclude any meaningful judicial review,” requiring annulment. Id.; see also,

Gilbert v Endres, 13 AD3d 1104, 1105 [4th Dept 2004] (record lacked findings of fact

requiring remittal); United States v City of New York, 96 F Supp 2d 195, 209 [EDNY 2000] (a

hearing transcript is necessary to review adjudicative proceedings, but is not required to

review decisions in administrative or quasi-legislative proceedings conducted to consider

proposed actions of public agencies); accord, Nemeth v K-Tooling, 163 AD3d 1143, 1144

[3d Dept 2018] (although respondents did not furnish the public hearing transcripts, they

did submit the minutes of the hearings and affidavits with extensive documentary

evidence, which was sufficient to permit meaningful review of the zoning board of appeals’

determination rendered after a public hearing).

Here, Respondent has failed to submit an affidavit attesting to the completeness of

the record and the briefs submitted thereat have not been provided. Notwithstanding, the

Court finds that judicial review of Respondent’s determination is not precluded since

Petitioner was present, represented by counsel and avers no prejudice thereby and there is

no basis to conclude that Petitioner’s defense has been compromised by the failure to

provide the hearing transcript. Nemeth v K-Tooling, 163 AD3d 1143.

Parties’ Contentions-Merits

Petitioner claims that the EDL does not apply to him since legislators have no

department head or appointing authority and, even if applicable, Respondent acted in

excess of its authority when it restricted his property rights. Further, he claims that the

5
CSEA contract is a collective bargaining agreement (CBA) exempt from the conflict of

interest prohibitions under the General Municipal Law (GML) and, further, that any benefit

to Petitioner from his vote is de minimis, belying a personal financial benefit or

unwarranted privileges for his wife thereby.

Petitioner relies upon his wife’s eight-year tenure in the Comptroller’s office prior to

his election as legislator, such that her wages, benefits and right to collective bargaining

were pre-existing and that the CSEA contract was negotiated by the Executive, affecting

approximately 1000 county employees who comprise nearly 80% of the County’s

workforce. Further, he notes that the CBA was approved unanimously and that there is a

history of similarly situated legislators casting such votes. Moreover, he avers that the

Board’s advisory opinion, which is not mandatory, calls for recusal only in matters

specifically affecting the Comptroller’s office, not county-wide agreements, as here.

Further, Petitioner claims that the Board was politically motivated and sought his

removal as evidenced by the 10-day contingency permitting a waiver of sanctions should

Petitioner resign his seat, contrary to the EDL provision that a fine assessed by the Board is

not final until thirty days after its imposition. In support, Petitioner submits a May 2019

letter from Elliott Auerbach, the Comptroller, opining that any alleged benefit to Petitioner

by the alleged actions is baseless and politically motivated. Finally, Petitioner maintains

that the sanctions imposed are grossly disproportionate to the ethical violations claimed,

rendering same arbitrary and capricious.

The Board contends that the EDL applies to legislators as county officers and

discounts the caselaw interpreting the GML’s scope as to conflicts of interest, since said

statute permits localities to pass broader ethics laws. Moreover, it asserts that even if no

6
actual conflict exists, Petitioner’s actions created an appearance of impropriety by his votes

to increase his wife’s salary and advocacy for staffing in the Comptroller’s office, which

would benefit his wife by lessening her workload.

Finally, the Board denies a political motive based upon Spada’s reply affidavit

disavowing a political connection to the Executive at the time and stating that the Board’s

composition complies with EDL provisions on party affiliation.

Discussion-Merits

The arbitrary and capricious standard “relates to whether a particular action should

have been taken or is justified…and whether the administrative action is without

foundation in fact.” Pell v Bd. of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and

Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974] (internal citations omitted).

Review of such action upon the arbitrary and capricious standard, after a hearing that does

not include the formal taking of testimony, considers substantial evidence “only to

determine whether the record contains sufficient evidence to support the rationality of the

board's determination,” Fildon, LLC v Planning Bd. of Inc. Vil. of Hempstead, 164 AD3d 501,

503 (2d Dept 2018) (internal citations and quotations omitted); Sasso v Osgood, 86 NY2d

374, 385 [1995]. In addition, the administrative authority must state the basis of its

findings with sufficient clarity to permit judicial review. Rochdale Mall Wines & Liquors, Inc.

v State Liq. Auth., 29 AD2d 647, 648 [2d Dept 1968], affd, 27 NY2d 995 [1970]. However,

when a court “is faced with the interpretation of statutes and pure questions of law […] no

deference is accorded the agency's determination.” Madison-Oneida Bd. of Co-op. Educ.

Services v Mills, 4 NY3d 51, 59 [2004].

7
Jurisdiction

An administrative board’s jurisdiction,

“consists of the powers granted it by statute, [and…] a determination is void and

subject to collateral attack where it is made either without statutory power or
in excess thereof….[and] jurisdiction to act will be inferred only when it is required
by necessary implication.” Flynn v State Ethics Com'n, Dept. of State, State of N.Y., 87
NY2d 199, 202 [1995] (internal quotations and citations omitted)
The EDL governs the conduct of county officers, who are defined as members of,

inter alia, a board or body. EDL § 44-3. When read together with the Municipal Home Rule

Law (MHRL) § 10(1)(a)(1), EDL’s applicability to legislators is corroborated, as same

references a county’s powers regarding selection and removal of members of the county

legislature, “in their capacities as county officers.” Further, this interpretation is consistent

with GML Article 18 regarding conflicts of interest, which defines municipal employees as

any officer or employee paid from county funds. GML § 800(5). Indeed, the EDL explicitly

excludes judicial personnel and some advisory bodies, but not county legislators. Thus, the

statutory language necessarily implies that legislators are county officers subject to the

Board’s jurisdiction.

Personal Financial Benefit or Unwarranted Privileges or Exemptions under EDL § 44-4(A)

Further, the EDL adopts the GML statutory language which has been interpreted to

exclude CBA contracts from its conflict of interest provisions. See, GML § 801(c)(2)

(conflicts of interest provisions “shall in no event be construed to preclude the payment of

lawful compensation …of any County officer or employee in one or more positions of public

employment”), EDL § 44-3 (definition of “Interest” as excluding a contract of employment

with the County); EDL § 44-5(A)(2) (limiting conflicts of interest regarding County

contracts as limited by the above quoted language of GML § 801(c)(2)]; see also, Stettine v

8
Suffolk County, 105 AD2d 109, 117 [2d Dept 1984], affd, 66 NY2d 354 [1985] (collective

bargaining agreements covering civil servants under the Taylor Law are not the kind of

agreements which GML Article 18 was intended to cover). Moreover, the Board fails to cite

to any provision in the EDL evincing broader conflict of interest prohibitions than the GML.

Thus, by necessary implication of its statutory language, the EDL precludes a per se

finding of a conflict of interest based solely upon Petitioner’s votes for the CSEA CBA,

especially where, as here, the CBA terms were negotiated by the county executive and

Petitioner’s wife’s employment and CSEA membership pre-dated Petitioner’s election. See,

e.g., Peterson v Corbin, 275 AD2d 35, 38 [2d Dept 2000] (legislator's public officer status as

branch manager of city off-track betting corporation and his membership in union

representing employees of city and county off-track betting corporations did not establish

a likely conflict of interest precluding his vote for county OTB board members); cf., Tuxedo

Conservation & Taxpayers Ass'n v Town Bd. of Town of Tuxedo, 69 AD2d 320, 323 [2d Dept

1979] (where deciding vote was cast by a legislator who refused to recuse and was vice-

president of an advertising agency which was a strong contender for all the advertising

contracts upon approval of a 200 million dollar project, the conflict of interest was clear).

Consequently, the Board’s Findings as to Charges A and B, which rely solely upon

Petitioner’s votes on the CBA, lack a basis in substantial evidence, as a matter of law.

Finally, Respondent’s Findings as to Charge C are unsupported by the record,

rendering them arbitrary and capricious. The alleged conflict of interest based upon the

speculative assertion that Petitioner’s wife would have reduced work duties if the

confidential secretary position were to be restored cannot withstand scrutiny. Indeed,

Petitioner did not vote on said proposal, raised by the Deputy Comptroller in circumstances

9
where Petitioner and a second legislator both addressed, in general terms, the issue of

confidential secretary positions.2 Moreover, Respondent’s Findings lack reference to any

standard for assessing a “reasonable appearance of impropriety,” under the EDL or

inclusion of a reasoned assessment of the facts thereunder. Consequently, Respondent’s

Findings under Charge C must be annulled.

Accordingly, the petition is granted and Respondent’s Findings of Fact and

Conclusions of Law are hereby annulled.

This constitutes the Decision and Order of this Court. The Court is forwarding the

original Decision and Order directly to the Petitioner, who is required to comply with the

provisions of CPLR §2220 with regard to filing and entry thereof. A photocopy of the

Decision and Order is being forwarded to all other parties who appeared in the action. All

original motion papers are being delivered by the Court to the Supreme Court Clerk for

transmission to the County Clerk.

Dated: Hudson, New York

November 6, 2019

__________________________________
RICHARD MOTT, J.S.C.
Papers Considered:

1. Notice of Petition and Petition of Allan B. Rappleyea, Esq., with Verification of Joseph
Maloney, dated April 23, 2019 with Exhibits 1-8;
2. Verified Answer of John J. Greco, Esq., dated May 16, 2019 with Verification of Derek J.
Spada, Esq., dated May 20, 2019 and Exhibits A-B, and Affidavit of Derek J. Spada, Esq.,
dated May 17, 2019 with Exhibits 1-9;
3. Reply Affirmation of Allan B. Rappleyea, Esq., dated June 11, 2019 with Exhibit 9;
4. Supplemental Affirmation of Allan B. Rappleyea, Esq., dated August 20, 2019 with
Exhibits A-E;
5. Supplemental Opposing Affirmation of John J. Greco, Esq., dated August 29, 2019;
6. Supplemental Reply Affirmation of Allan B. Rappleyea, Esq., dated September 3, 2019.

2 Notably, the Findings’ statement that Petitioner alleged a political motive for the lack of such position in the
Comptroller’s office contradicts the certified minutes which attribute said comment to another legislator.

10