An ethics committee in the town of Cicero has determined that the supervisor’s relationship with an employee of the former engineering firm employed by the town does constitute a conflict of interest, according to a decision issued by the committee last week.
Robert George, an attorney who lives on Lakeshore Road, brought a complaint against the supervisor at the Cicero Town Board’s April 9 meeting. George stated that Supervisor Jessica Zambrano’s romantic relationship with Douglas Wickman, the senior principal for C&S Engineering and town engineer for the town of Cicero, constitutes a conflict of interest. The two have been romantically involved since 2011 and share a residence within the town. Zambrano denied any impropriety, stating that she had cleared it with the town’s attorney.
Zambrano denied any wrongdoing, stating that she has already been absolved in the matter by a previous investigation.
“When I first realized my relationship with Doug was becoming more than casual, I asked our town attorney for an opinion of whether or not my situation would be a conflict of interest,” Zambrano told the Star-Review earlier this year. “He reviewed the criteria for conflict of interest and researched the matter with other attorneys. The conclusion was that there is no conflict of interest because there is no direct or indirect financial benefit to me or to Doug.”
Zambrano blamed political opponents conducting a smear campaign.
“The current complaint is nothing more than typical political nonsense that unfortunately occurs far too often these days,” she said.
The matter was referred to the town’s board of ethics for an investigation. The board submitted its final word on the matter to the town board on Dec. 10.
The board’s decision
The opinion, labeled Advisory Opinion 14-01, notes that the board of ethics is not an investigative body, nor does it have jurisdiction over non-employees, including entities or individuals that contract with the town to provide services. It does, however, have the authority to issue an opinion as to whether a conflict of interest was present under Article 18 of the state’s General Municipal Law and/or Chapter 22 of the Cicero Town Code.
According to the board’s opinion, the major issue at hand was the following:
“Whether a town supervisor or town board member who resides with an engineer/employee of a firm employed by the town under a professional service contract has a prohibited ‘conflict of interest’ under Section 800 (3) of the General Municipal Law and/or Section 22-3(B) of the Town of Cicero Code of Ethics.”
According to that section of the General Municipal Law, a town official “has an ‘interest’ in any contract with his or her municipality if he or she receives a direct or indirect pecuniary or material benefit as a result of that conflict. That ‘interest’ is prohibited if the officer or employee, individually or as a member of a board, has the power or duty to: (a) negotiate, prepare, authorize or approve the contract or approve payments thereunder; (b) audit bills of claims under the contract; or (c) appoint an officer or employee who has any such powers or duties.”
The board of ethics’ opinion notes that Zambrano sought the advice of town attorney Robert Germain in 2012, but not again after she moved in with Wickman or after she was elected supervisor. However, she did vote on the appointment of C&S Engineers as the town’s engineering firm twice as a town board member and once as supervisor after they began cohabitating. In addition to living with the supervisor, Wickman had taken back a mortgage from Zambrano in the amount of $104,000 payable over 15 years at an interest rate of 2.85 percent per year effective in 2013 when she purchased a half-interest in his home.
The ethics committee’s decision stated that whether Zambrano benefits financially from the contract is a matter for another board with more investigative authority. But there does appear to be some impropriety.
“The agreed-upon facts present here could imply that, in this case, the municipal officer received a financial benefit as a result of the contract,” the board wrote. “It is the opinion of the board of ethics that a conflict of interest was present…. The municipal officer had a prohibited interest in the contract in question, which, at a minimum, should have been disclosed to the governing body in writing prior to any participation in the contract. Additionally, under the circumstances above, the municipal officer should have recused herself from participating in any respect or voting on the contract.”
The board recommended the following:
That the code of ethics’ definition of “family” be modified to include spouse, domestic partner and/or any other dependent members of the household;
That all town officials attend a mandatory annual seminar on the town’s ethics code as well as the state’s General Municipal Law;
That town officials submit a financial disclosure statement annually; and
That the board of ethics meet each January to review those financial disclosure documents.
It is up to the town board to adopt those measures.
Town board withholds decision
Though it received the opinion at its Dec. 10 meeting, the town board has declined to release the decision, according to town officials.
“That was not supposed to be released,” said Councilor Mark Venesky, who said the board wanted to take the time to “process” the report before making it public. “It’s not a public document until the town board decides to release it, and we have not done that yet.”
According to New York State Committee on Open Government Executive Director Robert Freeman, the town board is within its rights to keep the document confidential for now.
“The board of ethics is unquestionably subject to FOIL and the Open Meetings Law,” Freeman said. “However, my understanding is, and the town clerk confirmed this, that the board of ethics only offers opinions to the town board, and the town board has the authority to accept, reject or modify their recommendations. That being so, any recommendation made by the board of ethics need not be disclosed. It’s considered intra-agency material, and the Court of Appeals has repeatedly said… those materials… can be withheld.”
That doesn’t mean that the board won’t eventually make the full text of the decision public.
“Let’s say there’s a recommendation indicating a finding of misconduct,” Freeman said. “If that finding is adopted by the town board, it becomes public.”
Though the town board has denied FOIL requests for the board of ethics’ decision, a copy of the opinion was mailed anonymously to the Star-Review. The full text of the decision can be viewed at eaglestarreview.com.
Leaked document a crime?
At the moment, town officials seemed more concerned about the unauthorized release of the decision. Venesky said whoever leaked the decision to the Star-Review is guilty of a misdemeanor, as the board is bound by a confidentiality clause.
“I spoke to our legal counsel, and he said whoever sent you that document could be guilty of a misdemeanor,” he said.
Board of Ethics Committee Chairman Bill Bradley said the matter has been referred to the Cicero Police Department, as releasing the documents violates a local law.
As for the town, complainant Robert George said he is disappointed that it has declined to release the documents.
“Given the nature of the allegations against Ms. Zambrano, the residents of Cicero have the right to know,” he said. “However, I fear that Ms. Zambrano will do everything in her power to keep the board of ethics decision secret, so that the public will never know.”
He urged an independent investigation by the Onondaga County District Attorney’s Office to determine whether the conflict was perpetuated “knowingly and willfully.”
“The fact that the board of ethics determined that a “conflict of interest was present” is the equivalent of finding Supervisor Zambrano guilty of violating both New York State Municipal Law and the Cicero Code of Ethics,” George said. “The issue of ‘knowingly and willfully’ should be determined by the DA’s office.”
George also filed similar complaints with the New York State Comptroller and the state Attorney General. Those complaints have not yet been resolved.
