Board of Ethics Discuss Employment of Frank Rubino at Harris Beach BY HON. JOSEPH F. NOCCA

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YonkersCity_Seal
Re: Email dated May 31, 2010 Regarding Frank Rubino* (See Below)

July 19, 2010.

Dear Mr Aris:

The Ethics Board of the City of Yonkers received the above email from you regarding Frank Rubino accepting employment in an of-counsel position at the law firm of Harris Beach PLLC (“Harris Beach”) immediately after retiring as Yonkers Corporation Counsel. Your email asked that the Ethics Board consider whether such employment: (a) required a waiver from the Ethics Board (and if so, whether such a waiver was obtained) or (b) constitutes an appearance of impropriety.

The Ethics Board has considered this matter and has determined that no waiver was required, and that no conflict of interest or appearance of impropriety was created.

Relevant Law

The controlling waiver provision is Code of Ethics §C1A-10(C):

     No City officer or employee shall solicit or accept a position of employment after termination of City        service, from any person who received any financial benefit from an action or failure to act by that        City officer or employee within the prior (1) year.

Analysis

Harris Beach serves as bond counsel to the Yonkers Industrial Development Agency (“IDA”). The IDA is a public benefit corporation and is entirely legally distinct from the City of Yonkers. The Yonkers IDA was created under §903 of Title 2 of Article 18-A of the New York General Municipal Law, and is governed under the enabling statutes set forth in Title 1 of Article 18-A. The IDA does not appear in the Yonkers City Charter. The jurisdiction of this Board does not extend to IDA employees or board members. The IDA is not part of the City budget. Its employees and officers are not part of the City’s civil service system. It is worth noting that Hawkins, Delafield & Wood LLP has served as the City’s bond counsel for over twenty years.

The Office of the Corporation Counsel has no role or function with the IDA. No action or failure to act by Mr Rubino resulted in any financial benefit to Harris Beach during the year before his retirement, or at any time that he served as Corporation Counsel.

The IDA retains its own General Counsel. The Corporation Counsel does not advise the IDA’s Board, nor provide direction to the IDA’s counsel. The Corporation Counsel does not review the invoices of the IDA’s general counsel, nor any of the IDA’s outside counsel (nor any other invoices nor any other matters for the IDA), nor has any role in selecting IDA counsel.

The City’s Board of Contract and Supply, which by law must approve all City contracts (City Code, §13-1) does not review any of the IDA’s contracts, including those for outside counsel. Likewise, the Corporation Counsel must approve all City contracts as to form, and the Corporation Counsel does not review or approve any IDA contracts.

The waiver provision of the Ethics Code has not been triggered, and there was no requirement that Mr Rubino for a waiver in order to accept the position at Harris Beach.

Further Rules for Post-Service Employment

The Ethics Code contains further safeguards with regard to post-service employment. Ethics Code §C1A-10(A) bars Mr Rubino from appearing before the City on behalf of another person for a period of one year from March 19, 2010. “Appear” is defined in the City Code as “communicating in any form, including without limitation, personally, through another person, by letter or other writing, or by telephone.” Id., §C1A-4(A). Additionally, §C1A-10(B) imposes a lifetime ban with regard to any matter the employee worked on while with the City, defining “works on” as, “substantially involved with the matter or personally supervises or directs how the matter is to be handled.”

Section C1A-10 of the Ethics Code is intended to address thoroughly all aspects of post-service employment for City employees. Reviewing that Section makes clear that no waiver was required and that Mr Rubino’s acceptance of the position at Harris Beach is fully in accord with the law.

Conflict of Interest

Because the Ethics Code specifically and thoroughly addresses the issue of employees leaving government, and the present case does not require a waiver, it would be inappropriate to find a conflict of interest or to apply the “appearance of impropriety” standard. The existance of a statutory inquire for determining whether a waiver is required implies that if no waiver is required in a particular case, then there is no conflict. The statute has clearly defined what constitutes a conflict.

Based on the above laws, and upon the information available to the Ethics Board, Mr Rubino’s acceptance of the position at Harris Beach is, in all respects, proper.

Thank you for bringing your concerns to our attention.

Sincerely,

Hon. Joseph F. Nocca

On behalf of the Yonkers Board of Ethics

#####

* Referenced (From Above)

TO: Hon. Joseph Nocca, Chair

        Board Members

FROM: Hezi Aris, Yonkers Tribune 

DATE: May 31, 2010

REGARDING: Waiver Granted Frank Rubino Permitting his Acceptance of Employment with Bond Counsel Harris Beach

Your Honor,

You are familiar with the departure March 19, 2010, of Frank Rubino from his employ as Yonkers Corporations Counsel. Mr Rubino was succeeded by Mark Blanchard by the unanimous approval of the Yonkers City Counsel on Tuesday, April 13, 2010, and sworn to office by Mayor Phil Amicone on Wednesday, April 14, 2010.

Mr Rubino’s employ may be or is simply construed to be conduct of impropriety unless he was given a waiver by the Yonkers Ethics Board. No such waiver has been found in my research.

Please advise if Mr Rubino divulged his employment prospect for employment at Harris Beach? And if he did, did he earn a waiver from the Ethics Board. And if he did so earn a waiver, at what meeting did this take place?

I should hope you will be able to consider discussing this issue at the June 10th meeting I learned about through your email to me today.

To make lifer easier for the Board of Ethics, I took the liberty to refer you to the section of the City of Yonkers Code of Ethics Mr Rubino is in violation. Is there a remedy for this? What is it?  Mr Rubino  has chosen to accept a position with  a company he used to do business with as Corporation Counsel.

§C1A-10. Post Service Or Employment Activities.

< p>A. Except as otherwise provided in this section, a City officer or employee shall not appear before the City on behalf of another person for a period of one (1) year after the completion of his or her City service or employment. This Subsection shall not prohibit a City officer or employee from being elected to a City office, being appointed to any City board or commission, being hired as a City officer or employee, or being paid by the City to appear as a witness in any proceeding on behalf of the City.

B. The prohibition set forth in Subsection A shall be permanent as to particular matters on which the City officer or employee personally worked while a City officer or employee. A City officer or employee personally works on a matter when that City officer or employee is substantially involved with the matter or personally supervises or directs how the matter is to be handled.

C. No City officer or employee shall solicit or accept a position of employment after termination of City service, from any person who received any financial benefit from an action or failure to act by that City officer or employee within the prior one (1) year.

D. Nothing herein shall prevent a City officer or employee from working for a federal, state or local government body or agency and, in that capacity, appearing before the City at any time after the completion of City service.

E. Any City officer or employee may request a waiver of the provisions of this section from the Ethics Board, as provided in Section C1A-36.

§C1A-11. Avoidance of Conflicts.

A City officer or employee shall not knowingly acquire, solicit, negotiate for, or…

Kindly,

Hezi Aris

Publisher / Editor / Talk Show Host 

Yonkers Tribune, Westchester Herald, On the Level with Hezi Aris

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eHeziBoard of Ethics Discuss Employment of Frank Rubino at Harris Beach BY HON. JOSEPH F. NOCCA

Comments 20

  1. Is this the same judge who let Zehy Jereis walk away with a slap on the wrist after he was found guilty of forging signatures on petitions ?
    The wool has been pulled over the eyes of the Yonkers sheep, yet once again.
    It is amazing how uninformed the people of Yonkers are, but this is the fault of a corrupt media (Yonkers Tribune excluded) for many years. Journalists have been and continue to be in the pocket of the politicians.
    Shades of Al Capone’s Chicago.

  2. Yes Debt, He’s building debt higher and higher. A true tax and spend democrat. They all are, except Joan who should be the next Mayor of Yonkers.

  3. comparing the public employee unions to welfare
    recpients points out how the unions take the same
    position as to what they are “entitled” to get
    even though their contract provisions in some respects
    are totally outragous..no one has had the courage to
    take them on..but chris christie has…they are a protected class..while all the rest of the taxpayers
    have to adjust their expectations based on the economy
    not the public employee unions though ..they insist
    on their raises and their puffed up pensions along
    with the other “entitlements: that some public officials agreed to in order to get their support
    its the same thing as being on welfare because in
    either case the taxpayers are subsidizing the cost
    and have nothing to say about it..
    as for the mayor’s office ..all 100 of his people
    those under his direct control should contribute
    to their health insurance if they don’t already
    they should also all take immediate 5% across the
    board cuts in their salaries

  4. WOW. You people are even dumber than I thought. Nocca is a former Judge, a Harvard grad AND a Rhodes Scholar.
    But that’s OK. Of course he’s wrong and the fleas who infest this blog are correct. How could it be any other way?

  5. Great!
    Apparently they need a special invitation to investigate everything.
    Why haven’t they picked up the ball on McDow and asked if she paid her parking.
    If they need me to write a letter, I will..
    Best of luck Pat.

  6. This city needs more freakin’ pot smokin’ plastic stork molestin’ (on video) crazy-ass ninja vampires!
    They would sure clean up the mess in city haul.(and take out a few werewolfs too!)

  7. C’mon Edelman. Comparing the public employee unions to welfare recipients is even a low blow for an ambulance chaser like you. Shame on you.
    And by the way, why does Amicone refuse to make his political patronage folks in City Hall pay for their health care. I don’t hear you speaking much on that matter.

  8. the Ethics Opinion is wrong. It assumes facts that aren’t true. Rubino had a deep relationship with the lawyers from Harris Beach and now he’s working w/ them. The Ethic Board is afraid to do it’s job. This a an “Emperor’s New
    Clothes” story. The conflict is evident to everyone except the Board that is looking to protect Amicone’s people.

  9. Having an ethics board in Yonkers is as usefull as a an old lady on a pogo stick. It just aint right to watch but you cant help but looking.

  10. this ethics opinion is correct and the anti phil
    naysayers really have to go in a different direction
    the feds are not intersted in phil or in yonkers
    why don’t you sing a different song occasionally
    every single city in this state is facing the
    same doomsday scenario as yonkers.the difference
    is that across the river chris christie is solving
    problems and taking on the welfare recipients…no no
    not the people on welfare the public employee unions
    we have no one comparable to do the same thing because
    new york is so democratic that it is stuck in the 1970’s

  11. anon1,
    weak weak weak.
    the IDA is separate for exactly this reason. It is another tool to provide a slush fund and manage events like this. What the ethics board just did is deny the intent of the law Mr. Aris inquired about. This is exactly where and how the corruption in Yonkers occurs.
    have you ever wondered where those f*cking computers are?
    your day is almost over.

  12. AND the rabid dogs on the YTrib are wrong yet again.
    Leave the law to the lawyers, guys. You’re just embarrassing yourselves.

  13. You got to be kidding. What a joke. The Ethics Bd is just a shill for Amicone.
    The IDA is separate and distinct from the City? PLEASE. Doesn’t that firm work closely with Corporation Counsel on development matters? You’re telling me Rubino was out of the loop on IDA matters. Where is the legal precedent that supports this decision? Not one case is cited. The Ethics Bd is one big cover for the Amicone administration’s Ethics lapses. The Board should be ashamed and resign immediately after apologizing to the people of Yonkers.

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