Toby Heilbrunn and Bill McKenna.

Toby Heilbrunn and Bill McKenna.

After concluding that Woodstock council members Bill McKenna and Cathy Magarelli violated the local ethics law, warranting disciplinary action including public apologies, the Ethics Board on July 9 faced withering criticism from Town Board members who charged the ethics panel with failing to apply the law properly and thus depriving McKenna and Magarelli of their right to due process.

In a June 26 letter to the Town Board, the Ethics Board reported the finding of an investigation that it undertook in February when an individual — who remains anonymous, and who also received a copy of the recent letter — questioned the propriety of an appearance by McKenna and Magarelli at an August 30, 2012, meeting of the Planning Board. That meeting’s agenda included a review related to Cucina restaurant’s proposed expansion of its facility on Mill Hill Road.

The Ethics Board determined that McKenna and Magarelli had violated provisions of Section 71-3 of the ethics law, titled Standard of Conduct. In part, the relevant provisions prohibit town officers and employees from representing private interests before town agencies or appearing before such agencies except on their own behalf or on behalf of the town. The ethics panel noted that McKenna and Magarelli “were not asked by supervisor Wilbur (sic) to attend” the Planning Board meeting.

The minutes of the planning meeting reported several remarks by McKenna on aspects of the expansion, including the question of whether the zoning law required a new site plan for the project. While the minutes did not report that Magarelli spoke at the meeting, she acknowledged attending the session and speaking briefly about both the Cucina matter and an unrelated subject. An audiotape of the proceedings confirmed her presence and remarks.

[Laura Ricci, who was a Planning Board member at the time of the meeting and is now the town’s deputy supervisor, reported at the July 9 Town Board meeting that she had been interviewed by the Ethics Board in the current case. Ricci said that she had seen nothing improper about the appearance by McKenna and Magarelli at the planning meeting. “I did not perceive it as supporting individuals, but as just to uphold the law,” she said.]

 

‘A common thread’

The gist of the Ethics Board’s finding was that McKenna and Magarelli had improperly represented a private interest — Cucina’s — in their appearance at the Planning Board meeting. “As a result of interviews with witnesses, a common thread ran through our finding,” said the Ethics Board in the June 26 letter. “It was (that) Cathy and Bill were there to support individuals who were directly involved in the particular matter before the Planning Board.” In a July 9 interview the Ethics Board’s acting secretary, Toby Heilbrunn, confirmed that “individuals” referred implicitly to Cucina’s principals.

Three members of the Ethics Board participated in the investigation: Teri Reynolds, the panel’s chair; Fran Breitkopf, the vice chair; and Heilbrunn, the acting secretary. A fourth member, Allison West, recused herself from the case because she is a friend of McKenna. The panel’s fifth seat remains vacant following a resignation months ago.

In recent interviews and written statements, as well as in remarks at the July 9 meeting of the Town Board, McKenna and Magarelli asserted that the Ethics Board had, effectively, tried and convicted them without affording them an opportunity to respond in writing to the alleged violations or to request a hearing in which they could respond, orally or in writing, to the actions of the ethics panel. Section 71-8 of the ethics law directs the Ethics Board to offer an “affected person” such an opportunity before (italics added) it makes a “reasonable-cause finding.”

On March 18, about a month after it received the request for an inquiry, the Ethics Board separately interviewed McKenna and Magarelli in what all parties agree was a fact-finding effort to determine whether the complaint alleging impropriety had merit. At no time between those interviews and the June 26 letter reporting the Ethics Board’s findings and recommended penalties, which include public apologies for violating the ethics law, were the council members either informed that ethics panel had found merit in the complaint or given an opportunity to respond to allegations lodged by other witnesses.

Both council members denied that they had represented Cucina’s interests at the Planning Board meeting. Their purpose in attending the session, they said, was to ensure that the planning agency followed the zoning law in its deliberations. McKenna and Magarelli also stated that their freedom of speech under the First Amendment — a right that the Ethics Board acknowledged in its letter — could not be abridged by any local statute.

Indeed, said the Town Board officials, their constituents properly expect them to express their views on local issues, as other Woodstock town officials routinely do at meetings of boards other than their own.