Chautauqua County Legislator Lori Cornell (D-Jamestown) is responding to criticism that has surfaced since she – along with eight other legislators – voted against the sale of the Chautauqua County Home to a Chicago-based company on Jan. 23. The nine votes were enough to prevent the sale to Altitude Health Associates, Inc. from going forward and the county will continue to own and operate the skilled nursing facility.
Following the vote, the Jamestown Post-Journal printed an editorial on Friday, Jan. 25 entitled “Residents Forgotten in County Home Vote.” In the editorial, the newspaper stated that Cornell should have recused herself after making it public that she had previously had a family member who was a resident in the home:
“Cornell should have recused herself from the vote after making it known that her grandmother was once a resident at the County Home. At a time residents in Jamestown needed a clear-minded legislator, they got a self-serving lawmaker who allowed emotions to take over.”
– Jamestown Post-Journal Editorial on Jan. 25, 2013
On Monday, Lori Foster, the Chautauqua County Legislature Deputy Clerk, forwarded to the media an email that County Attorney Steve Abdella had originally sent to Cornell. In the email, Abdella acknowledges that Cornell had – in 2012 – looked into whether or not she should recuse herself from the vote on the county home. Abdella also said that he had advised her against recusal, citing rules in the county’s legislature’s rules and regulations, the county’s code of ethics and the New York State General Municipal Law. Cornell requested that Foster forward Abdella’s email to the media to settle the issue of whether or not she should have recused herself from the vote.
Below is the email from Abdella to Cornell, in its entirety, as forwarded by the legislature deputy clerk.
This email will confirm that during 2012 you inquired whether your prior experience visiting and assisting your late grandmother during her stay at the County Home would be a ground for recusal from voting on the proposed sale of the County Home. At that time, I advised you that your experience with your grandmother would not be a ground for such recusal based on the analysis set forth below of the County Legislature’s rules and regulations, the County’s code of ethics, and the New York State General Municipal Law’s conflict of interest provisions.
Rule 9(B) of Section I of the Rules and Regulations of the Chautauqua County Legislature provides as follows:
“B. Every member who shall be present when the Chairman states a question shall vote thereon, except that a Legislator may abstain from voting with permission from a majority of the Legislature because of a direct interest in the question presented.”
Section 5(1) of the County’s Code of Ethics regarding transactional disclosure and recusal defines the nature of a “direct interest” justifying a request to abstain:
“Whenever a County officer or employee is requested or required to take any action on a matter before the County and, to his or her knowledge, either the performance or nonperformance of that action would provide a pecuniary or material benefit to himself or herself or to any related person different from that which would be derived from the action by reason of its general application to a broad class of person deriving such benefit, the County officer or employee shall not participate in that matter. A County Legislator shall advise the legislature of such interest and request permission to abstain from voting.”
Similarly, Section 800(3) of New York State General Municipal Law defines an interest as follows for purposes of conflicts of interest:
“’Interest’ means a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves. For the purposes of this article a municipal officer or employee shall be deemed to have an interest in the contract of (a) his spouse, minor children and dependents, except a contract of employment with the municipality which such officer or employee serves, (b) a firm, partnership or association of which such officer or employee is a member or employee, (c) a corporation of which such officer or employee is an officer, director or employee and (d) a corporation any stock of which is owned or controlled directly or indirectly by such officer or employee.”
Based on the above-quoted provisions, your experience with your grandmother does not in any way constitute a “direct interest” or “interest” for purpose of recusal and requesting to abstain from voting on the proposed sale of the County Home. To constitute such an interest, there must be a potential pecuniary or material benefit arising out of the vote to you, a family member, an employer, or a business/corporation in which you have an interest. Obviously, your prior experience with your grandmother at the County Home does not create any current potential pecuniary or material benefit for any of such persons.
It should be further noted that as reflected in the County Legislature’s rule requiring all members to vote when present, there is a strong public policy in favor of legislator action as opposed to inaction in carrying out their duties. Section 153 of New York State County Law provides that the County Legislature shall have power to compel the attendance of its members at Legislature meetings and that a monetary penalty may be imposed for non-attendance, indicating the State Legislature’s intent that county legislators should be present at Legislature meetings and should fulfill the duties of the office to which they were elected, unless absent for good cause.
Do not hesitate to contact me if you have any questions.
Stephen M. Abdella, Chautauqua County Attorney
Gerace Office Building
3 North Erie Street
Mayville, New York 14757