Ethics Board Delivers Final Report on New Rochelle Mayor Noam Bramson
Due to popular demand we removed the paywall on this article.
NEW ROCHELLE, NY (June 16, 2022) — The verdict is in on the ethics complaint I filed on March 20, 2022.
Peter A. Meisels, partner at Wilson Elser Moskowitz Edelman & Dicker LLP delivered a report on behalf of the New Rochelle Ethics Board to City Manager Charles B. Strome III, tonight, June 16, 2022.
The email with the report attached was cc’d to
nbramson@newrochelleny.com. mlopez@newrochelleny.com, ataranti@newrochelleny.com, yramosherbert@newrochelleny.com, ihyden@newrochelleny.com, skaye@newrochelleny.com, efried@newrochelleny.com ccphipps1@aol.com, dblumentd@gmail.com, robertcox@talkofthesound.com
The Ethics Board report concluded that New Rochelle Mayor Noam Bramson did violate the Charter in making and pursuing his request to be appointed Development Commissioner by City Manager Charles B. Strome and in bringing pressure to bear on Strome to rescind Strome's appointment of Kathleen Gill as Deputy City Manager. He did not violate the charter in seeking to appoint an unqualified person to the position of City Manager.
A discredited addendum submitted by David Blumenthal was included in the final report. See Editor’s Note below for more on that.
That no transcripts were appended to the final report suggests they were withheld in anticipation of a criminal referral to the Westchester County District Attorney’s Office.
ETHICS BOARD OF THE CITY OF NEW ROCHELLE
Advisory Opinion
The Complaint
The New Rochelle Board of Ethics received complaints filed by Robert Cox, dated March 20 and two dated March 28, 2022 (the “Complaint Letters”) (copies annexed hereto as Exhibits A-1, A-3 and A-4), alleging that Mayor Noam Bramson violated the New Rochelle City Charter, the New Rochelle Ethics Code and /or New York State law by:
1) Seeking his appointment by the City Manager to the position of Commissioner of Development, for which he did not meet the qualifications provided for in the City Charter;
2) Efforts to have the City Manager rescind the appointment of Chief of Staff/Corporation Counsel Kathleen Gill to the position of Deputy City Manager/Corporation Counsel.
3) Seeking to install a person without the Charter required qualifications as City Manager.
Introduction
During the course of the Board's investigation and deliberations concerning the complaint of Robert Cox, the Board considered the testimony offered by Mayor Noam Bramson, all members of the City Council, the Development Commissioner Adam Salgado, the Human Resources Commissioner Robert Yamuder, the City Manager Charles B. Strome III, the Deputy City Manager/ Corporation Counsel Kathleen Gill, and the Chairman of the Business Improvement District Mark Jerome. In addition, the Board considered correspondence dated April 13, 2022, received from the Mayor's attorney, Steven Leventhal and a memorandum from the City Manager to the Mayor, attaching an ethical opinion from the International City/County Management Association and two opinions from the City’s labor counsel.
Jurisdiction of the Board of Ethics Authority Granted By the Ethical Code
The New Rochelle City Charter establishes a Code of Ethics for officers and employees of the City of New Rochelle, which promulgates rules “in addition to any prohibition of Article 18 of the General Municipal Law or any other general or special law relating to ethical conduct and interest in contracts of municipal officers and employees.” § 94.02(1) Section 94.02(3) sets forth standards of conduct, including the prohibition of gifts over $25 in circumstances giving rise to an appearance of impropriety, the disclosure of interest in legislation, prohibition of the use of one’s office to obtain unwarranted benefits for others, a recusal requirement where a matter may financially benefit the officer or employee’s interest, disclosure of financial interest per the annual financial statement required by Chapter 33 of the Code. § 94.02(3) (a), (e), (i), (m), (o).
In addition to the authority to receive and investigate a complaint to the extent it alleges a violation of financial reporting requirements (New Rochelle Code § 33-11(A)(5)) (authority to investigate alleged reporting requirement violations), the Board of Ethics also has the authority to investigate and issue an Advisory Opinion as to allegations concerning possible violations of other provisions of the General Municipal Law and/or the City’s Code of Ethics regarding non-reporting related violations, provided that it receives a written request for such an advisory opinion from a municipal officer or employee. See New Rochelle Code §§ 33-9(E) (Board of Ethics has all powers provided by GML Article 18); § 33-16 (authority to issue advisory opinions upon written request from anyone subject to Board’s jurisdiction); § 33-17(B) (Board has authority to conduct any investigation necessary to carry out the provisions of this article); General Municipal Law § 808(2) (authority to issue advisory opinions “with respect to this article and any code of ethics adopted pursuant hereto”). § 33-16 Advisory opinions. Upon written request from any person who is subject to the jurisdiction of the Board of Ethics, the Board of Ethics shall render advisory opinions on the requirements of said provisions. An opinion rendered by the Board of Ethics, until and unless amended or revoked, shall be binding on the Board of Ethics in any subsequent proceeding concerning the person who requested the opinion and who acted in good faith, unless material facts were omitted or misstated by the person in the request for an opinion. Such opinion may also be relied upon by such person and may be introduced and shall be a defense in any criminal or civil action. Such requests shall be confidential, but the Board of Ethics may publish such opinions, provided that the name of the requesting person and other identifying details shall not be included in the publication. (emphasis added).
Provisions of State Law
Article 18 of the General Municipal Law concerns “Conflicts of Interest of Municipal Officers and Employees. General Municipal Law § 808(2) provides that a board of ethics “shall render advisory opinions to officers and employees” of the municipality “with respect to this article and any code of ethics adopted pursuant hereto.” “Such advisory opinions shall be rendered pursuant to the written request of any such officer or employee under such rules and regulations as the board may prescribe and shall have the advice of counsel employed by the board, or if none, the county attorney. In addition, it may make recommendations with respect to the drafting and adoption of a code of ethics or amendments thereto upon the request of the officers and employees of the municipality.”
Summary of Relevant Facts
By Charter, the City of New Rochelle adopted a Council/Manager form of government approximately 90 years ago.
The Board’s investigation covered a period of time of approximately one year, from the Spring of 2021 to the Spring of 2022.
During the course of the efforts by City Manager Charles B. Strome III to identify candidates for the vacant position of Development Commissioner, a professional search firm made an unsuccessful attempt to find suitable prospects. In the Spring of 2021, the City Manager shared his frustration with Mayor Noam Bramson and made an off-hand suggestion that maybe the Mayor should apply for the job. According to the Mayor, he and the City Manager joked about it at first but it then evolved into a more serious conversation.
The City Manager decided to conduct a second search. Realizing that his comment was taken seriously and recognizing the negative Charter implications of any such appointment, a meeting was arranged to discuss the City Manager’s concerns. At that meeting conducted over lunch, which was attended by the Mayor, the City Manager and the Chief of Staff/Corporation Counsel Kathleen Gill, the City Manager’s concerns about the “optics” of any such appointment were discussed and the City Manager expressed that this was not something he could do. The City Manager was concerned about the propriety and appearances of hiring an elected official into the City’s professional administration. The Mayor was unconvinced and opined that the optics did not matter if he was the most qualified person for the position, which he believed to be the case.
The Mayor continued to pursue his efforts to secure the position and another meeting was scheduled to discuss the issue. At that meeting which was held in the Mayor’s office, attended by the Mayor, the City Manager and the Chief of Staff/Corporation Counsel, Ms. Gill, joined by the City Manager, expressed her legal opinion that any such appointment would constitute a Charter violation and her concern that it could constitute a violation of the City Manager’s professional ethics. She also expressed that she was very concerned about the optics of such an appointment in the community. After expressing her concerns, she withdrew from the meeting. After the meeting, Ms. Gill made arrangements to secure an opinion as to the legality of such an appointment from outside counsel at the City Manager’s request.
Shortly thereafter, the City Manager again advised the Mayor that he had Charter and ethics concerns and was not comfortable making that appointment. A few days later, the Mayor went to the City Manager’s office and asked him to reconsider. Reluctantly, the City Manager suggested he take part in the second application process being conducted by the City’s search consultants by submitting a resume. The Mayor declined to participate. However, the present Development Commissioner did submit an application.
The Mayor continued to mention to the City Manager the subject of finding a suitable candidate for the position of Development Commissioner. When resumes were submitted by the City’s search consultants, he asked to see them. The City Manager provided him with the resumes of the finalists and the Mayor advised the City Manager that it was obvious that the Mayor was the best candidate.
The City Manager requested and received an ethics opinion from the ICMA, an organization whose over 5000 members are professional managers employed by municipalities which, as did New Rochelle, adopted a Council/Manager form of government. After receipt of opinions from outside counsel and the ICMA, the City Manager prepared a memorandum to the Mayor explaining the reasons he was barred from appointing him to an administrative position, attaching the legal and ethical opinions. The City Manager’s reasoning was based on the Charter, provisions of the Ethics Code, the ethical opinion submitted by the ICMA and legal opinions from the City’s labor counsel. A copy of the memorandum is annexed as Exhibit B (the legal opinions are not attached because of the attorney-client privilege; the opinion from the ICMA is attached).
The fact that the Mayor made efforts to secure the appointment both before and after the City Manager advised him that he could not offer him the position, caused the City Manager to feel significant pressure. He was aware that the Mayor was unhappy with the decision and continued to pursue the appointment. The City Manager did not fear termination or retaliation, but felt uncomfortable because he knew the Mayor desired the appointment but there was no legal and ethical way that the City Manager could honor his wishes. The Mayor’s continued effort to secure the position after the City Manager advised him that he could not make the appointment, created inherent stress. The City Manager believed that his advising the Mayor of his decision that he could not make the appointment should have been the end of the discussion. He felt pressured by the Mayor’s continued efforts to secure the position. Knowing that the Mayor, his boss and friend, was hoping to get that appointment and would be disappointed, created substantial anxiety over an extended period of time. Before preparing his memorandum to the Mayor, the City Manager discussed his dilemma, stress and anxiety with his colleagues in and out of City government from whom he sought advice.
Despite the stress and anxiety caused by refusing to appoint the Mayor, an elected official, to an administrative position, of greater concern to the City Manager was an effort by the Mayor to become involved in his specific personnel decision of appointing Kathleen Gill to be Deputy City Manager.
The Charter provides:
The City Manager shall have the power to appoint and remove a Deputy City Manager, who shall perform such duties as he shall direct. (Section 41).
Neither the Council nor any of its committees or members shall direct or request the appointment of any person to, or his removal from, office or employment by the City Manager or any of his subordinates. (Section 43).
Pursuant to the Charter, the Council, and all of its members, are barred from getting involved in specific personnel decisions and the City Manager has the right to appoint a Deputy City Manager at any time. The right to appoint a Deputy is absolute the Mayor has no role in that decision. When Mr. Strome inevitably learned of the Mayor’s efforts, (See Exhibit-C) he confronted the Mayor. The Mayor denied seeking enough votes to fire the City Manager, but advised him of his efforts to poll the City Council, after the fact, and why he made a bad personnel decision.
The Mayor interprets the Charter differently from the City Manager. He believes that the Charter prohibits members of the Council from interfering “inappropriately” with the City Manager’s appointment authority and precludes “inappropriate” compulsion or coercion. But laws that are not ambiguous must be given their plain meaning. The Charter language that “neither the Council or any of its...members shall request the appointment of any person to, or his removal from, office or employment by the City Manager” does not merely bar “inappropriate” interference, compulsion or coercion, it bars any interference, compulsion or coercion. Further, any City Manager clearly has a right to appoint a Deputy over which the Mayor and Council have no control.
In the months leading up to the Spring of 2022, the City Manager appointed four new Commissioners (Development, Parks and Recreation, Finance and Human Resources) about which the Mayor had no concerns that those appointments might somehow limit the options of a new City Manager. However, after the City Manager appointed Kathleen Gill to the position of Deputy City Manager /Corporation Counsel, the Mayor expressed concern that such appointment might impede the search for a new City Manager and sought to bring that concern to the City Manager.
He contacted four of the other six members of the Council to discuss his dissatisfaction with the appointment. The City Manager serves at the will of the City Council. It was inferred by some members of the Council that the Mayor’s seeking the support of a majority of the Council in criticizing the City Manager’s appointment would be perceived by the City Manager as threatening. In this case, the consensus of the Council members was that Kathleen Gill has been fulfilling the role of Deputy City Manager for a number of years and has done an excellent job. The Mayor agrees that Ms. Gill has been the de facto Deputy City Manager and has performed very well. Nevertheless, the Mayor felt her appointment was a “structural change in the government itself” and might signal that there was an heir apparent for the position of City Manager and might impose a “leadership structure” that the next City Manager may not want. By “structural change” he meant “creating a position that had not been formally filled.” However, that position had been filled in the past and the Charter specifically grants the City Manager the authority to fill it. Had other members of the Council agreed with his position, the Mayor planned to bring these concerns to the City Manager to do with their concerns “whatever he wanted to do.”
Assuming the Mayor had been able to gain support for his position, the City Manager would have been faced with rescinding his appointment or refusing to comply with the wishes of the legislative body that has the power to hire and fire him. There was speculation that the Mayor was dissatisfied with the legal opinion offered by Kathleen Gill as Corporation Counsel that his appointment to the position Development Commissioner would violate the Charter and believes that if she becomes the City Manager she will adhere to the same position taken by Mr. Strome in this regard.
Relevant Statutes
Section 39 Appointment and qualifications.
The Council shall appoint a City Manager who shall be the administrative head of the city government. He shall be chosen by the Council solely on the basis of his executive and administrative qualifications. ..... No person elected to the Council shall, during the time for which he is elected, be chosen as City Manager.
Section 40 Term and removal.
The City Manager may be appointed for an indefinite period to serve at the will of the Council. When appointed for an indefinite period, before the Manager may be removed he shall, if he so demands, be given a written statement of the reasons alleged for his removal and shall have the right to be heard publicly thereon at a meeting of the Council prior to the final vote on the question of his removal, but pending and during such hearing the Council may suspend him from office. The action of the Council in suspending or removing the Manager shall be final, it being the intention of this Charter to vest all authority and fix all responsibility for such suspension and removal in the Council. Until the City Manager is chosen, or in the event of his disability or suspension, the Council may designate someone to perform the duties of City Manager during such period.
The City Manager may be appointed for a definite term not to exceed two years, at the expiration of which term the City Manager may be reappointed from time to time in the discretion of the Council, but in no event shall any one period of appointment be for more than two years
The Council may employ a City Manager for a definite term not to exceed two years under a written contract of employment, which contract shall contain such terms and conditions as may be specified by the Council. Such contracts of employment may be renewed from time to time in the discretion of the Council but no one renewal period shall be for a period in excess of two years.
Section 41 Responsibility of Manager; powers of appointment and removal.
The City Manager shall be responsible to the Council for the proper administration of all affairs of the city placed in his charge, and to that end, subject to the civil service provisions of this Charter, and except as otherwise provided herein, he shall have the power to appoint and remove all department heads and such officers and employees in the administrative service of the city as may be assigned by law.
The City Manager shall have the power to appoint and remove a Deputy City Manager, who shall perform such duties as he shall direct. He shall designate the deputy or a department head to undertake the responsibilities and powers of the City Manager and have the title of Acting City Manager during his absence or disability. During the period of a vacancy in the position of City Manager, the Acting City Manager shall have the responsibilities and powers of the City Manager and perform his duties under the title of Acting City Manager, until such time as the City Council may remove him and appoint an Acting City Manager or until such time as the City Council may appoint a City Manager.
Appointments made by or under the authority of the City Manager shall be on the basis of executive and administrative ability and of the training and experience of such appointees in the work which they are to perform. All such appointments shall be without definite term, unless for temporary service not to exceed 60 days.
Section 43 Council not to interfere in appointments or removals.
Neither the Council nor any of its committees or members shall direct or request the appointment of any person to, or his removal from, office or employment by the City Manager or any of his subordinates. Except for the purpose of inquiry, the Council and its members shall deal with that portion of the administrative service for which the Manager is responsible solely through the Manager, and neither the Council nor any member thereof shall give orders to any subordinate of the city, either publicly or privately.
Section 44 Duties of Manager.
It shall be the duty of the City Manager to act as chief conservator of the peace within the city; to supervise the administration of the affairs of the city; to see that the ordinances of the city and the laws of the state are enforced, except as otherwise in this Charter provided; to sign all contracts, deeds or leases that may be authorized by the Council; to make such recommendations to the Council concerning the affairs of the city as may seem to him desirable; to keep the Council advised of the financial conditions and future needs of the city; to prepare and submit to the Council the annual budget estimate; to prepare and submit to the Council such reports as may be required by that body; and to perform such other duties as may be prescribed by this Charter or required of him by ordinance or resolution of the Council.
Complaint No. 1
CONCLUSION
It is not alleged that the Mayor, who has served the City as a Councilman for ten years and the Mayor since 2006, previously acted to advance his personal position in violation of the Code of Ethics or otherwise violated the City Charter.
The City charter provides:
Neither the Council nor any of its committees or members shall direct or request the appointment of any person to, or his removal from, office or employment by the City Manager or any of his subordinates.
The evidence relevant to this complaint is that City Manager first made the off-hand suggestion that the Mayor consider the position of Development Commissioner. Subsequently, the Mayor pursued the appointment despite being advised that the City Manager could not make any such appointment because it would violate the Charter and the ethical standards set for City Managers. There is no evidence to suggest that the Mayor intended to violate the Charter or that he did not believe his appointment to be in the best interests of the City.
Given the plain meaning of the Charter, the Mayor’s motives, no matter how well intentioned, do not dictate the answer to the question of whether he requested that the City Manager appoint him to the position of Development Commissioner. The evidence is not contradicted that he did. Regardless of his intentions, he did violate the Charter in making and pursuing this request of the City Manager even though he did not initiate the dialogue. In addition, it was inappropriate under the Code of Ethics for him, while an elected official, to seek appointment to an administrative position and he should have recused himself from consideration of his appointment.
Complaint No.2
After the City Manager made an appointment pursuant to the Charter provision which provides him with the authority to appoint and remove a Deputy, the Mayor contacted four of the remaining six members of the Council to discuss his reservations about the wisdom of the appointment. Although he was unable to secure sufficient support to have a majority of the Council bring these concerns to the City Manager, his efforts were made known to the City Manager.
As a result of the Mayor’s efforts, the City Manager was told that the Mayor was purportedly, whether true or not, attempting to find another three votes to threaten the City Manager’s position. Being a veteran of the Council, he should have reasonably inferred that his efforts would be reported back to the City Manager almost immediately. When the City Manager confronted him the next day, he denied seeking enough votes to fire the City Manager but repeated all of the reasons why he thought the City Manager made a bad appointment. Since the appointment had been made, the City Manager was left with the choice of rescinding the appointment or having an unhappy Mayor.
The Mayor’s actions, regardless of his intentions, brought pressure to bear on the City Manager. This constituted a violation of the Charter giving the City Manager the unconditional authority to appoint a Deputy and prohibiting any member of Council to request the removal of an employee.
Complaint No. 3
Concerning the question of whether the Mayor sought to appoint an unqualified person to the position of City Manager, we found no evidence to support that allegation. It was reported that the Mayor seeks to broaden the qualifications for the position of City Manager to include experience working with not for profit organizations. That alone does not establish any intention of appointing an
Dated: June , 2022
Charles C. Phipps, Chairman
EXHIBIT A1
New Rochelle Board of Ethics Complaint – Noam Bramson, et al.
EXHIBIT A3/A4
Amendment to Ethics Complaint – Noam Bramson, et al.
EXHIBIT B
Strome Memo to Bramson with Legal Opinion and ICMA Ethics Opinion
EXHIBIT A4
Emails: Bramson-Strome-Tarantino
EDITOR’S NOTE:
There have been needless delays — the report was drafted in April — due to stonewalling by one of the Ethics Board members, orchestrated, according to multiple sources, by Bramson, through Barry Fertel who has represented Council member Sara Kaye. Fertel has bragged about having inappropriate, if not illegal, ex-parte discussions with David Blumenthal about the report.
Ethics Board member David Blumenthal for weeks refused to sign the report, blocking its release.
As the intervention of the Westchester County District Attorney’s Office to take control of the investigation became increasingly likely, Blumenthal, under pressure, agreed to sign the report with the condition that the report would include own conclusions to. Given the likely source — Noam Bramson and his attorney Steven Leventhal — do not credit Blumenthal’s addendum which concludes that Bramson did not intentionally violate the charter on the first two charges and concurs with Phipps that Bramson did not violate the charter with regard to attempting to get his former campaign manager the job of City Manager.
I will get into that subject more fully once readers have had an opportunity to digest the report, but it has become clear that David Blumenthal is not fit to serve on an Ethics Board and needs to be removed immediately.
The entire purpose of the Blumenthal addendum was to provide Bramson some room to muddy the water. It is worth noting that Blumenthal had agreed to the report then, after lobbying by Fertel, held up the process until his addendum was added. He definitely needs to be removed from the Ethics Board.
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