NEW SCOTLAND — A planning board member resigned on Friday, the day before the town’s new ethics law took effect.

Cynthia Elliott, a licensed surveyor, submitted a letter to the town dated Dec. 31 that says, in part, “It is because of this flawed law that I must resign my position.”

In June, the town board unanimously adopted a new ethics law since its previous law, from 2001, proved to be useless the first time it was called upon, which wasn’t until late 2008, because the ethics committee was composed of the town board members.

According to the state’s General Municipal Law, local ethics boards must consist of a majority of members who are not otherwise officers or employees of the municipality.  The town named five residents to sit on the ethics board in August.  It then delayed implementing the ethics law until the new board could meet and address concerns raised most vocally by Elliott and long-time planning board member and former chairman Robert Stapf.

When the town board lifted the ethics law until Jan. 1, it also allowed the option for those who are currently sitting on municipal boards to resign by Dec. 31 and avoid being held to the section in the law that would bar them for two years from rendering services that would require them to come before the board on which they had served.

Stapf, also a licensed surveyor, requested an opinion from the ethics board in a letter dated Oct. 18, that says, “It appears that it is the intent of the Town of New Scotland to restrict any licensed professional who serves as a member of any town affiliated board from doing any business within the limits of the town and to limit any business by a licensed professional for two years after serving as a member of such board.”

In a Nov. 12 opinion from the ethics board that was made public this week, the board responded: “The plain meaning of the section governing the conduct of town officers or employees with professional licenses prohibits the professional’s work product from being used before any town agency.”

In her letter of resignation, Elliott wrote, “All licensed professionals are already held to a higher standard by their own positions and chosen fields; to single them out for further review is prejudicial.”  In 2001, Elliott was disciplined by the state’s Board of Regents for “preparing a survey description without performing a survey or any research,” according to the New York State Education Department’s Office of the Professions.

Councilman Richard Reilly may propose to amend the law so that it doesn’t single out only those who serve on boards and hold professional licenses, he said this week.  Beyond that, he said of not allowing a board member’s work product, like a survey, to be used in front of any town agency, “I just don’t see the risk there for a conflict of interest.”

That restriction could also discourage qualified people from serving on the town’s boards, Reilly said.

The ethics law should “abate any appearance of a conflict,” said Councilman Daniel Mackay, who helped draft the law.  A meeting for approval of a minor subdivision application could consist of only the building inspector, the applicant, and the person representing the applicant, Mackay said, “and there may well be some discretion involved…  I’m just worried that a situation like that leaves too much room for people to speculate.”

In a situation where there are three applicants, one of whom is represented by a person who sits on a municipal board, Mackay asked, does that applicant have an advantage?

“I’m not sitting on any smoking gun,” he said.  “I think it’s about appearance.”

The process should be open to the public, Mackay said.

He would be willing to discuss changes to the law, though.  Of amending the specification that some rules apply only to those who hold professional licenses to include everyone who sits on the town’s boards, Mackay said, “That’s probably an area… I’d be more willing to make an adjustment or change.”

Stapf was not satisfied with the opinion issued by the ethics board, he said this week, and until he sees the language proposed for an amendment, he couldn’t say if he’d approve.

Of the ethics law, Stapf said, it “seemed like it was a direct way of trying to get me to resign from the board and get Cyndi Elliott to resign from the board, which she did.”  Both he and Elliott supported a losing ticket that ran on a laissez-faire development platform in the town’s last election, which turned on issues of commercial development.  “I did not back the proper political party,” Stapf said.  “Therefore I felt that there are several individuals on the town board that are trying to get me off the planning board.”

Last Jan.1, when those on the winning ticket, who had favored a cap on the allowable size of commercial development took office, they did not re-appoint Stapf to his long-time post as planning board chairman.

“I think Mr. Stapf has taken a number of changes and initiatives in the past year all too personally,” Mackay responded through The Enterprise.  Mackay came into office last January after winning a seat on the board with a slate that ran on a platform of controlled retail development.  He pointed out that the town’s previous ethics law did not meet state requirements.  “We needed a new ethics law,” he said.

“Right now, I’m weighing my options,” Stapf said, adding that he has been consulting with counsel.

Replace Elliott?

In June, the town board voted unanimously to reduce the number of people on the planning board from seven to five, to be phased in as members’ terms expire.

According to New York State Town Law, “A town board which has seven members on the planning board may by local law, decrease the membership to five, to take effect upon the next two expirations of terms.  However, no incumbent shall be removed from office except upon the expiration of his or her term… If a vacancy shall occur otherwise than by expiration of term, the town board shall appoint the new member for the unexpired term.”

Elliott’s term runs through Dec. 31, 2012.

Asked if the town is planning to replace her, Supervisor Thomas Dolin said, “The town attorney is investigating it.”  Michael Mackey, the town attorney, could not be reached for comment.

Dolin expects that the town board will probably name a replacement, gathering resumes through advertising.

Closed meetings

All meetings of the ethics board, including its organizational meeting, have been closed to the public.  The section in New Scotland’s law governing the public’s access to the board’s records and meetings specifies that “No meeting or proceeding of the ethics board… shall be open to the public.”

“That is contrary to the Open Meetings Law, in my opinion,” said Robert Freeman, director of the New York State Committee on Open Government.

The State’s Open Meetings Law, which maintains that every meeting of a public body will be held open to the public, contains a section that states: “Any provision of a… local law… affecting a public body which is more restrictive with respect to public access than this article shall be deemed superseded hereby.”

Much of the ethics board’s work will probably meet the state requirements for entering executive session, which is closed to the public, since one of the categories for a closed meeting is for discussing “the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation.”

Both Dolin and Mackay indicated that the board should revisit that section of the town’s ethics law.