Paul J. Feiner
Town Supervisor

Robert B. Bernstein
48 Old Colony Road
Hartsdale, New York 10530

October 18, 2004

Judge Thomas Facelle, Chair
Greenburgh Board of Ethics
7 Pomander Drive
White Plains, New York 10607

Dear Judge Facelle and Members of the Board of Ethics:

I would like to comment on an October 8, 2004 request by Paul J. Feiner, Greenburgh Town Supervisor, for an advisory opinion concerning the propriety of soliciting and accepting political contributions from parties having applications pending before one or more town boards, including the Town Board itself.

The Supervisor’s letter purports to address certain issues raised by me at a Greenburgh Town Board meeting on September 8, 2004. As has been publicly reported in both The Journal News and The Scarsdale Inquirer, I had asked Mr. Feiner at the meeting to avoid any appearance of impropriety by returning contributions he had received from parties or their counsel who had applications pending before the Town.

Rather than respond right away, Mr. Feiner decided to seek guidance from the Ethics Board. Having now read his letter, I must take strong exception to Mr. Feiner’s presentation of the facts. In a matter as important as this, where the integrity of town decision-making is at stake, public officials owe town residents and the Ethics Board a duty of complete and total candor. If Mr. Feiner has been less than candid with the Ethics Board in his description of the issues presented, then any opinion rendered on the basis of such description might itself be called into question. I therefore respectfully request that before rendering any opinion on the matter, the Ethics Board take into account my comments as well as his.

Mr. Feiner’s letter begins by referring to my having questioned the appropriateness of Mr. Feiner receiving at a fundraiser held earlier this year a political contribution from just one individual, i.e., Michael D’Alessio. That is not correct. I questioned the appropriateness of his receiving thousands of dollars in contributions at this particular fundraiser from not only Mr. D’Alessio, but from a number of others with applications pending before the Town. The fundraiser took place March 29, 2004 at a restaurant in White Plains. The specific contributions at issue did not become known until July 15, 2004 when "Friends of Paul Feiner" filed with the Westchester County Board of Elections a list of contributions received for the first six months of 2004.

Among the other questionable contributions was a $500 donation from lawyers representing a developer seeking Planning Board approval for a subdivision in Edgemont with a controversial "flag lot." Twelve days before the donation was made, the Planning Board had given the Town Board unanimous approval of a proposal to ban flag lots. After the contribution was made, however, the proposed flag lot ban was taken off the Town Board agenda. As a result, the developer was able to receive final approval for its flag lot subdivision before the Town Board could act.

Another questionable contribution came from the Greenburgh Health Center and its affiliate, the Mt. Vernon Health Center, which together contributed $500. At the time of the March 29 fundraiser, the Greenburgh Health Center was seeking a zoning change to allow it to open a health care facility not otherwise permitted on Knollwood Road.

Yet another questionable contribution came from Peter Gilpatric of Morristown, New Jersey who gave $1,000. Mr. Gilpatric is senior vice president of LCOR Inc., which is developing a $300 million project in northern Greenburgh. At the time of the March 29 fundraiser, LCOR had a number of applications pending before several town boards, including the Town Board itself.

Not only does Mr. Feiner omit to mention these and other contributions, but Mr. Feiner’s recitation of the facts concerning the one contribution he does discuss – the $1,000 he received from Mr. D’Alessio -- appears to be selective at best. First, Mr. Feiner states that "Mr. D’Alessio attended a fundraiser that William LoSapio of Gregory’s Restaurant in White Plains hosted for my campaign account on March 29^th." In fact, Mr. Feiner told The Scarsdale Inquirer that the fundraiser was organized by Mark P. Weingarten, a member of the White Plains law firm of DelBello Donnellan Weingarten Tartaglia Wise & Wiederkehr, LLP, and that it was Mr. Weingarten, who issued the invitations on behalf of Mr. Feiner’s campaign committee. See The Scarsdale Inquirer, "Residents Question Feiner on Campaign Contributions," September 17, 2004. Mr. Feiner also omits to mention in his letter that Mr. Weingarten was then representing Mr. D’Alessio and that, in addition to Mr. D’Alessio’s $1,000, his law firm contributed another $500.

By omitting any mention of Mr. Weingarten, the statement in Mr. Feiner’s letter that Mr. LoSapio was the evening’s "host" is misleading. Mr. LoSapio owns the restaurant where the event took place. His sole role that night was to present the Feiner campaign with the tab.

Mr. Feiner next asserts that he himself did not "invite or solicit contributions from Mr. D’Alessio or any entity he controls, and was unaware that Mr. D’Alessio was planning to attend the event." This is beside the point. Public officials cannot circumvent the prohibition against soliciting from parties with applications pending by simply letting others do the solicitation for them. Here, Mr. D’Alessio’s lawyer, who organized the event, did the soliciting for him.

The assertion that Mr. Feiner was "unaware" that Mr. D’Alessio was planning to attend the event that evening does not make what occurred there any less improper. In his letter, Mr. Feiner admits that prior to the party, he was well aware that Mr. D’Alessio had a controversial application pending with the Town. Indeed, he claims to have arranged an ultimately unsuccessful meeting between Mr. D’Alessio and residents to try to resolve their differences. As Mr. Feiner explains, "[t]he first such meeting was held in the early part of the year – before any contribution was made to my campaign."

Mr. Feiner then states that on March 8, 2004, the Greenburgh Forestry Officer granted preliminary approval to Mr. D’Alessio to cut down trees. However, Mr. Feiner next states that "shortly after that action, the Town Board held a public meeting to hear an appeal of that decision." (Emphasis added). What Mr. Feiner fails to disclose, however, was that on March 17, 2004 – 12 days before the fundraiser took place – residents in Edgemont had filed an appeal to the Town Board of that forestry officer’s decision. Under the Town’s tree ordinance, such appeals are heard exclusively by the Town Board. Thus, by the time the March 29 fundraiser took place, Mr. D’Alessio, Mr. Weingarten and Mr. Feiner all would have known that Mr. Feiner, as Town Supervisor, was in a position to influence the outcome of that appeal. Mr. Feiner’s omission of that critical fact is therefore quite telling.

Significantly, after an article was published in The Scarsdale Inquirer explaining how close in time the D’Alessio contribution was to the appeal, the March 17, 2004 minutes of the Planning Board, which reported the appeal, were removed from the Town’s Website, along with the minutes of all town boards for the three months immediately preceding the March 29 fundraising event. The minutes were restored to the Website only after a Journal News reporter inquired as to the reasons for the removal. No reasons were given.

Mr. Feiner also omits to mention what he has admitted publicly elsewhere, i.e., that he actually met and spoke to Mr. D’Alessio at the fundraiser. See Scarsdale Inquirer, September 17, 2004. This is not surprising since Mr. D’Alessio was one of only a handful of attendees that night who contributed the maximum $1,000. In addition, this was the first time that Mr. D’Alessio, who does not live in Greenburgh, had ever made a contribution to Mr. Feiner.

Mr. Feiner nevertheless states that it was proper for him to take the money because in his opinion "the Code is inapplicable." Mr. Feiner is wrong. Section 570-7 makes it unlawful for the Town Supervisor to "solicit any contribution" from any party who has an application pending. The purpose of Section 570–7 is not to punish influence peddling as such – crimes like municipal bribery and graft are addressed elsewhere in the state’s penal code. Rather, the purpose of Section 570-7, which is part of the Town’s Code of Ethics, is to make sure that public officials here avoid even the appearance of impropriety. The issue before the Ethics Board is thus not whether Mr. Feiner was influenced or improperly used his influence. That is a matter for the Westchester Counjty District Attorney’s Office. Rather the issue here is whether Mr. Feiner’s solicitation of funds for his campaign from persons having applications pending before the Town creates an appearance of impropriety.

Toward the end of his letter, Mr. Feiner states that, "[b]ased on the practices of my predecessors who might have been involved in approving the law, I believe that the legislative intent of section 570-7 is to prohibit direct solicitation by town officials of those seeking approval of applications – not by campaign committees generally acting to promote the campaigns." (Emphasis added). Mr. Feiner’s brazen assertion that there is therefore nothing wrong in having his campaign committee solicit contributions from persons having applications pending before the Town is simply astonishing. However, Mr. Feiner’s comments in this regard are ipse dixit – his saying so does not make it so – and they should be given no weight. Furthermore, Section 570-7 was adopted in April 1991, which was eight months before Mr. Feiner was sworn into office. Whatever practices of Mr. Feiner’s predecessors may have had, they are irrelevant and even if Mr. Feiner knew about them, and there is no indication he ever did, such practices would have no bearing at all on the purpose for which Section 570-7 was adopted – unless its purpose was to make sure that such practices, if they occurred, were stopped.

Mr. Feiner nevertheless argues that he did not solicit funds – his campaign did – and that all he did was attend the campaign’s fundraiser. However, mere attendance at a political fundraising event can under certain circumstances constitute improper solicitation by a public official. For example, the Code of Ethics governing Members of the United States Congress expressly forbids them from soliciting contributions that "may create the appearance that, because of a campaign contribution, a contributor will receive special access or special treatment." See Senate Select Comm. on Ethics, Interpretative Ruling No. 427 (Sep. 25, 1987), reprinted in Senate Ethics Manual, 108^th Cong., 1^st Sess. (2003) at 291-92. This restriction on solicitation expressly applies to attendance at fundraisers. See House Comm. on Standards of Official Conduct, Laws, Rules and Standards of Conduct on Campaign Activity, 107^th Cong., 1^st Sess. (2001) 32-34, 36-37; House Ethics Manual, 102d Cong., 2d Sess. (1992) 257-58 (Member’s attendance at a political fundraising event can constitute an improper solicitation where donors have an interest in certain legislation, event takes place at or close to time when such legislation is being considered, and Member has ability to influence the outcome).

The most recent application of this principle occurred on October 6, 2004, when the bipartisan House Ethics Committee unanimously held that House Majority Leader Tom DeLay had violated the prohibition against improper solicitation of political contributions when he attended a political fundraising event attended by donors having an interest in certain legislation then pending in a House-Senate Conference Committee over which Rep. DeLay could have had some influence. See Statement of the Committee on Standards and Official Conduct, Statement of the Committee Regarding Disposition of the Complaint Filed Against Representative Tom DeLay, October 6, 2004, Memorandum of the Chairman and Ranking Minority Member ("a Member should not participate in a fundraising event that gives even the appearance that special treatment or special access to the Member in his or her official capacity is being provided to donors").

The situation here is remarkably similar. Regardless of whether Mr. Feiner knew in advance that Mr. D’Alessio would be attending the event, Mr. Feiner knew or should have known that his attending a fundraiser attended by one or more clients of Mr. Weingarten’s firm with applications pending before the Town would create an appearance of impropriety. And it should have been obvious that taking money at such a fundraiser from a first-time big donor like Mr. D’Alessio, whom Mr. Feiner knew had a controversial application pending, would have been especially inappropriate.

Mr. Feiner explains at length that Mr. D’Alessio received no favors from the Town or from him personally. On that basis, he asserts that none of the actions he has taken "could be construed to favor the personal interests of Mr. D’Alessio." However, Mr. Feiner omits to mention that a hearing on the residents’ appeal was held before the Town Board, that Mr. Feiner never disclosed to the residents prior to that hearing that he had received the $1,000 contribution from Mr. D’Alessio, that before the appeal was decided, Mr. D’Alessio cut down many of the trees in question and, despite protests from neighboring residents, the Town did nothing to stop him. Mr. Feiner notes that Mr. D’Alessio eventually withdrew the application that was the subject of the appeal, but significantly omits to mention that Mr. D’Alessio’s action in cutting the trees in the first place – and the Town’s failure to stop him – had rendered the application moot. Mr. Feiner also points out that the Town Board subsequently enacted legislation unfavorable to Mr. D’Alessio and that Mr. Feiner himself pushed for "quick adoption" of such laws. This is true. But what Mr. Feiner omits to mention is that these actions only came after it was revealed that Mr. Feiner had received the $1,000 contribution from Mr. D’Allessio.

However, the issue here is not whether these facts show that Mr. Feiner had been improperly influenced – although an argument can certainly be made that he was – but whether, under all the facts and circumstances presented here, Mr. Feiner’s having taken the money in the first place created an appearance of impropriety.

Mr. Feiner next states that a new application to cut down more trees was filed in August 2004 and now seeks guidance as to the "appropriateness of [his] participating and reviewing Mr. D’Alessio’s upcoming tree removal application scheduled for a Town Board hearing on November 4^th." I respectfully submit that under these circumstances, the Ethics Board should find that Mr. Feiner’s conduct was indeed in violation of Section 570-7, that he should return the contribution, and that, to avoid any further appearance of impropriety, he should recuse himself from having anything further to do with the matter.

As indicated above, contrary to the impression Mr. Feiner’s letter may create, his conduct in respect of the D’Alessio application was not an isolated incident. The March 29, 2004 fundraiser raised a total of about $32,000 for "Friends of Paul Feiner." The entire fund contains approximately $132,000. Therefore, this was a relatively huge fundraiser for Mr. Feiner and it undoubtedly gave Mr. Weingarten and his firm’s clients unusual access and opportunity to influence Mr. Feiner. Indeed, at the time the fundraiser was held, Mr. Weingarten and his firm were representing a number of other clients with applications pending before the town. One such client was Sunrise Development Corp., which was seeking Town Board approval at that time to purchase the old Town Hall property for $2.7 million – a price many considered to be substantially below market. Significantly, Mr. Feiner was at that time Sunrise’s most vocal supporter on the Town Board and a vote to enter into exclusive negotiations with Sunrise – a vote that Mr. Feiner was insisting had to take place – was scheduled for April 14, 2004 – a little more than two weeks after the March 29 fundraiser. Here too, the issue is not whether Mr. Feiner was improperly influenced – even though evidence suggests that he was – but rather whether, under all the facts and circumstances, his solicitation of funds by appearing at a political fundraiser where the donors, or their counsel, had applications pending before the Town created an appearance of impropriety.

Mr. Feiner suggests in his letter that the balance of the controversy surrounding the contributions he receives arises out of his "campaign committee" periodically sending out "mass fundraising invitation mailings to previous campaign supporters and to individuals who have been helpful to other candidates for public office" and that, if political contributions were obtained in this manner from persons with applications pending, it was totally inadvertent.

This assertion is a red herring. The questionable contributions here at issue were raised not in connection with mass mailings, but in connection with Mr. Feiner’s March 29 fundraiser – an event which was open to substantial donors only.

Mr. Feiner asks whether the Ethics Board would deem it advisable for him to recuse himself from upcoming votes where a contribution was made when an application is pending. In other words, Mr. Feiner wants the Ethics Board to allow him in such circumstances to keep the money. That would be a mistake. Not only is it ethically wrong to take such money in the first place, but lists of contributors are made public only periodically and in all likelihood, as was the case here, the applications would be acted upon long before anyone would know that a contribution was made.

The rule should therefore be as follows: To avoid all appearance of impropriety, contributions from persons with applications pending before the Town should never be accepted and therefore should always be returned to the donor. In addition, the town official who receives the contribution should always recuse himself from acting on the donor’s application. The reason is to avoid any temptation on the part of such donors to contribute later – after the application is acted upon -- which could create the appearance of a reward for services rendered.

Finally, Mr. Feiner suggests that he would be prepared to direct his campaign committee to include in every future fundraising appeal a statement to the effect that his campaign "will not accept any campaign contribution from anyone who has any application on matters pending before the Greenburgh Town Board at the time the funds are donated to the campaign." Against the background of the foregoing facts and circumstances, this suggestion is disingenuous. Part of the problem is that Mr. Feiner appears to raise a substantial amount of money not from mass mailings, but by soliciting large donations from law firms, engineering firms, architects and others who typically do business with the town and, more importantly, are likely to be representing at the time one or more clients with pending applications with the Town. Thus, if Mr. Feiner’s disclaimer were adopted, improper contributions could still be made by persons with applications pending – they would just do it through their counsel, engineers, and architects.

A second problem is that Mr. Feiner would apply his disclaimer only to persons having applications on matters pending before the Greenburgh Town Board. Thus, persons having applications pending before other town boards, such as the Planning Board and/or the Zoning Board of Appeal, could continue to contribute. The problem with this approach was illustrated recently by a report in the September 24, 2004 Scarsdale Inquirer. Quoting a Planning Board member, whose name was withheld, the Inquirer reported that after Mr. Feiner’s March 29 fundraiser, an attempt was made by a Town Board member aligned politically with Mr. Feiner to influence the Planning Board’s actions by "fast-tracking" at least two pending applications, i.e., the "flag lot" subdivision and the Greenburgh Health Center zoning change. In response to that article, five members of the seven-member Planning Board signed a letter that appeared in the Scarsdale Inquirer on October 15, 2004 denying that the board had been "pressured" by anybody. That letter was significant because two Planning Board members did not sign the letter – thereby making it appear all the more likely that an attempt to influence was made. The possibility of influence is also suggested by the fact that, on June 2, 2004, the Planning Board met in a "work session" ex parte with counsel for the "flag lot" developer – even though the subject was not on the Planning Board’s agenda for that meeting, persons with applications pending are not normally invited to speak at "work sessions" and no members of the community opposed to the project were ever notified to come. The point, of course, is not whether an attempt to influence occurred. Rather, the point here is that Mr. Feiner’s pattern and practice of accepting money from donors with applications pending creates an appearance of impropriety here and elsewhere regardless of whether any wrongdoing actually occurred.

In sum, I believe it is incumbent on the part of the Ethics Board to consider all the facts and circumstances in responding to Mr. Feiner’s instant request for an advisory opinion. To consider only Mr. Feiner’s recitation, in the teeth of example after example cited herein of his having played fast and loose with both the facts and the law, could result in a less than helpful opinion from the Ethics Board. Such an opinion might unintentionally encourage the very conduct the Greenburgh Code of Ethics was adopted to prevent and thereby do even more damage to the integrity of decision-making in this town.

If I can be of any further assistance to the Board, or if any members of the Board would like copies of the materials referred to herein, please let me know and I will provide them. I am also willing to appear before the Board to answer any questions.

Respectfully,

/signed/

Robert B. Bernstein

cc: Paul J. Feiner, Town Supervisor
Diana Juettner, Town Councilman
Eddie Mae Barnes, Town Councilman
Timmie Weinberg, Town Councilman
Steven Bass, Town Councilman
Jeanine Pirro, District Attorney
Edgemont Community Council Board of Directors
Editor, The Scarsdale Inquirer
Editor, The Enterprise
Editor, The Journal News

Hal Samis
125 North Washington Avenue, #39
Hartsdale, NY 10530

October 17, 2004

Judge Thomas Facelle and
The Greenburgh Board of Ethics
7 Pomander Drive
White Plains, NY 10607

Gentlemen:

I don’t know you and you don’t know me so it may not be fair, on my part, to take this tack. However, I would be less than honest were I not to convey a suspicion that has occurred to me, even though I have no factual grounds to support this. This feeling is based upon the month that it took Mr. Feiner to send you his letter now dated October 8.

Those residents who are familiar with Mr. Feiner’s ability to convey his point of view to the media with all haste, often before the event occurs, are somewhat dismayed by the lengthy period for him to dispatch this letter, even after he had informed the media that he had already written the letter weeks ago. The one month interval which occurred following Mr. Feiner’s public announcement that he would write such a letter and, with this letter now in the hands of the public and the Ethics Board, a not unreasonable, under these circumstances, supposition has been postulated. To wit: that Mr. Feiner negotiated the contents of his letter and that the Board’s reply to his narrow statement of the circumstances has already been conditioned.

I hope this is not true.

Assuming that you gentlemen are not unaware of the reality and extent of the allegations against Mr. Feiner because you likely have read the reportage in The Scarsdale Inquirer and in The Journal News, I would expect that you would have some wrestling to do with the picture as painted by Mr. Feiner in his letter. That Mr. Feiner has chosen to seek your indemnification for a basketful of sins by only dwelling on one situation makes this resident question what the process really seeks to achieve. Naively, perhaps, I had assumed that the Ethics Board would rule on the propriety of the entire gamut of Mr. Feiner’s transgressions with regard to fund raising and not limited to only what is presented by the Greenburgh Supervisor. As there are several situations alleged by that mysterious "town resident" (attorney Bob Bernstein of Edgemont) cited by Mr. Feiner, residents and town hall watchers have assumed that you would rule not only on what Mr. Feiner has chosen to bring before you but also on the similar situations which illustrate a pattern of behavior and disregard for such niceties as town code, oath of office and an understanding of avoiding even the appearance of impropriety. Perhaps not acting nobler than Caesar and Lincoln but still a cut above today’s average corporate captain would not be an unreasonable request of our elected officials.

I hope this is true.

Reviewing Mr. Feiner’s letter and examining only what it purports to convey, I am troubled not only by the contents but also by what is absent from his take on even this one campaign contribution. Thus, following the "history" as set forth in the letter, let me amend the contents by either adding what is missing or incorrect.

The fundraiser at Gregory’s Restaurant was hosted by Mark Weingarten not by the owner, William LoSapio. Mr. Weingarten was applicant D’Alessio’s attorney at the time of the event. Mr. Feiner’s campaign treasury paid for the event. Mr. D’Alessio (a Republican) was not out driving around and dropped in by chance but had been invited – as were all of the other attendees and contributors.

The line between Mr. Feiner and those that run his fundraising is not one akin to a "Chinese Wall" and most certainly the right hand and the left hand were conversant.

What the history per Mr. Feiner of meetings between Mr. D’Alessio and the community is not relevant. Only the application and the acceptance of the contribution should be before you. Whether Mr. D’Alessio did or did not receive consideration for his contribution is also not relevant. Only the application and the acceptance of the contribution is.

Back with the letter… Mr. Feiner continues by giving his history of his post "manure hitting the fan" efforts to be the local learned hand. Yet he does not remove himself from the process; he does not return the contribution and he argues, what is truly laughable, that since all politicians, since the beginning of time, receive "contributions" (some of them go to jail) he needs your advice (‘please don’t throw me in that briar patch’) as to what is proper regarding accepting contributions. Clearly, from his letter, he doesn’t expect your censure or punishment, he only expects your advice, after all, you and he are all men of the world!

Now comes his sermon on the evil of mass mailings, fundraisers and campaign committees. ‘Friends, we’ve got trouble, right here in Greenburgh’…Please approve the language herein so that this problem will never, ever happen again.

Again, just on the long shot that such a change is necessary, does he offer to return the money?

No, because it is the principle (as in principal) involved. It is not just this one contribution but the thousands and thousands of dollars at stake; those dollars collected by Friends of Feiner over the years from lawyers doing business with the town, from developers doing business in town and from a corporate and individual citizens alike who need a friend in high places. News to Mr Feiner? Not according to his campaign history.

So what we do have in Mr. Feiner’s letter is a "consultation" among equals: not did I do wrong? And from the language he has used, how could you arrive at any other result. However the public has assumed that Mr. Feiner is being judged. He writes you as though he just got into politics and fundraising yesterday and if he has made just a little tiny error (actually, if his underlings have made an error) then we’ll fix it next time.

This is not the textbook discussion of objective reality versus perceived reality. It is a given that the Ethics Board will not be able to prove "influence" or the acceptance of bribes. This matter, however, is the textbook discussion of whether the Supervisor has accepted contributions which give the appearance of impropriety. And, the code distinguishes between soliciting and accepting but emphatically does not permit accepting, even by agents. On this matter, the town code cannot be more clear. Since Mr. Feiner signals that he doesn’t get it and what’s all the fuss about, myself and many other residents hope that you will exercise your authority to send a clear message. And, requesting him to return contributions is not, by itself, a clear message.

Good citizens, who still believe in and work within the system, are watching and expecting justice to be served.

I, especially, hope this will be true.

/signed/

Hal Samis
Persistent Feiner Critic

Ed Krauss
330 Central Park Avenue
Scarsdale, NY 10583

Ed Krauss