Town clears planning chair of conflict charge

| 21 Feb 2012 | 10:56

    CHESTER-Chester officials have absolved the town's planning board chairman of wrongdoing related to a conflict-of-interest charge leveled against him nearly two years ago. After a heated discussion on Tuesday night, the town board decided that Planning Board Chairman Ray Johanson had not violated ethics laws when he accepted work from a developer while that developer's proposal for a major subdivision was before the planning board. The town board based its unanimous decision on a report it received from the New York State Comptroller's office last November. Town attorney Ben Ostrer, called upon by the board to "translate" the report, said Tuesday that he "would have hoped for a more pointed, yes or no answer" from the Comptroller. Instead, the Comptroller provided a series of its opinions on other, related cases for the town's "consideration." But, Ostrer said finally, "The Comptroller has found there was no violation of municipal ethics laws." Councilman Margaret Grumbach then urged the town board to move quickly to absolve Johanson. She said the town board had decided, when it passed the matter along to the state, that it would abide by Comptroller's opinion. She said she did not see the need to wait any longer. But Councilman Noel Spencer said Tuesday that he wanted to put off the decision until the town board's March 1 meeting, saying the report brought up points that raised questions in his mind. In particular, he pointed to a passage of the Comptroller's report that states: "We concluded that a municipality's code of ethics ... may require a member of a municipal agency to represent that he or she will not agree to perform compensated services for an applicant to a municipal agency until after the agency approves the application. We also concluded that a code of ethics may prohibit a member of a municipal agency from performing compensated services in relation to a matter previously before the agency." And Spencer wanted to address a problem raised by Ostrer, who said that should developer Steve Sherman's projects "dominate the planning board's agenda," the board would lose the expertise of a planning board chairman who kept recusing himself. Michael Sussman of Chester, a lawyer with an office in Goshen, made the conflict-of-interest charge against Johanson in March 2003, accusing him of using his official position for personal profit by accepting work for his water-testing firm, Isotonics, from Sherman, the developer of the Chester Golf Course, while that project was before the planning board. Sussman said the planning board gave Sherman special treatment. But the town board was uncertain whether what Johanson did was wrong. First, Sherman brought the Golf Course before the planning board during a town moratorium on major new subdivisions, when the board could not act on this or any other project. Second, Johanson did later recuse himself from any discussion of the Golf Course, when the moratorium was lifted. The town board sought help from the state in deciding whether Johanson had violated the law. Johanson told The Chronicle on Thursday that he had favored sending a matter that he considered a political football to the state. "I always felt there was no conflict, so this doesn't surprise me," he said of the decision to absolve him. "I find it extremely unfortunate that it became a political issue. There were several running for office who wanted to make it an election issue." Sussman told The Chronicle that the Comptroller's opinion does not exonerate Johanson, and in fact explicitly states that an official may not agree to perform paid services for applicants come before the board the official serves on. "I don't know what they (the board) is thinking about," he said Wednesday. He accused town officials of not being able to read. The Comptroller's report and Ostrer's letter to the town board interpreting the report may be found on Supervisor William Tully presented the public Tuesday with an extensive, 20-page draft of a local law amending the town's current ethics law. He said the draft reflected great deal of his research into the ethics codes of other municipalities around the county and state, including a code worked up but never adopted by the Town of Chester about 10 years ago. The draft makes repeated references to the importance of avoiding even the "appearance" of impropriety, conflicts of interest, or bias. The draft code requires both board members and applicants to disclose upfront any "direct or indirect financial or other private interest" in their relationship, including those of family members and business associates, "present or anticipated." "Most other places don't have it," said Tully. Tully said Johanson's integrity was not in doubt, and commended him for his more than 30 years of service to the planning board. He did say, however, that there could be a problem of "efficiency" should the planning board chairman need to continually recuse himself to avoid an ethical conflict. Johanson said he has been recusing himself from discussions of the Camp Monroe development before the planning board because Isotonics has for years been doing water sampling there. But the problem of potential conflicts occurs in every town, and not just Chester. That is why the town board expanded the planning board to a seven-member board, so that there there will be enough members to fill in for those who must recuse themselves. He said the potential for conflict exists with the new member, Eric Denega — whom the town board appointed on Tuesday to expand the planning board — because Denega is an engineer. But Johanson noted that anyone who works or has a business in Chester faces the same problem. Should the owners of gas stations and diners recuse themselves because their customers may be applicants? he asked. He pointed out that Noel Spencer and Cindy Smith own businesses that put them in frequent contact with a public that may bring applications before them. "Where do you draw the line?" he asked.