|A group at Summer Camp
|Judge Cardozo had an idea on conflicts
"In truth, I am nothing but a plodding mediocrity—please observe, a plodding mediocrity—for a mere mediocrity does not go very far, but a plodding one gets quite a distance. There is joy in that success, and a distinction can come from courage, fidelity and industry."-- Judge Cardoza
|Niagara Falls Housing Authority
Back Row: Stephanie W. Cowart, Executive Director, Frank Soda, Board Member, Jeff Paterson, Chairman, Owen T. Steed, Board Member Front Row: Cynthia A. Bianco, Vice Chairman, Vivian M. Watkins, Secretary and Carmelette M. Rotella, Board Member * Not in photo: Rev. Kevin Dobbs, Board Member
|An oasis from the grime and the crime of the city?
|Another view of the children at Summer Camp
By a vote of 3-1, with one member abstaining, the City Council of Niagara Falls approved a request to fund a summer program for the Niagara Falls School District for $100,000.
The School District is its own taxing entity, with a budget of $133.6 million, so this move by the city to fund a school program is highly unusual in light of the fact that the school board itself declined to fund it.
The newly city-funded program - called the "Annual Summer Camp" - is one that School Board President Russell J. Petrozzi and School Superintendent Cynthia Bianco wanted to see operate using school district funds, but a majority on the school board tabled a decision on June 11 - as the deadline to cancel or go forward drew near.
That's when Mayor Paul A. Dyster, who is running for reelection, and Council Chairman Andrew Touma, who works for the School District as Dean of Students at the LaSalle Preparatory School, stepped in to secure the $100,000 from city taxpayers to fund the Summer Camp.
The Summer Camp
According to the application form posted online by the School District, the Summer Camp is not an overnight camping experience for students in a rural setting, but is located at the Niagara Falls High School on Porter Rd., and features lunch, games and sports, for 15 half-day weekdays, starting 11:30 am and ending at 2:30 pm, from July 8 to July 31, and is free to students in grades 6-11.
The Niagara Falls Housing Authority will administer the program. This is the 10th year the school district has offered it.
No Conflict Says Touma
Touma told the Reporter that he did not think it was a conflict of interest for him to vote to fund his employer's program, adding that he was advised by the city's lawyer, Craig Johnson, that there is no conflict.
"The funding is going to the Housing Authority not the School District. The vote doesn't impact me directly," Touma said.
The monetary request comes from the School District, not the Housing Authority, according to the resolution Mayor Dyster presented to the council seeking funding approval.
The School District will then pay the Housing Authority to administer the program.
Jobs at Summer Camp
As part of an agreement with the School District, the Housing Authority will hire 27 persons to operate the summer camp and, according to Bianco, will bill at a rate of $22 per hour, instead of what the School District would be required to charge based on union requirements which is nearly double the cost to taxpayers.
Since, however, some summer camp employees are union School District teachers, they will presumably earn the union rate of $39 per hour, while others, who are not school district union employees, will earn closer to minimum wage, equalizing average wages for the spectrum of Summer Camp employees.
According to a proposed contract drawn by School District Attorney Angelo Massaro, the Housing Authority will receive an administrative fee and will hire "(4) student athlete/youth workers, (11) certified coaches, (2) office support personnel, (3) assistant food and grounds workers, (1) Site Coordinator, (3) Competitive Edge Sports Performance-Niagara Falls Memorial Medical Center sports trainers and (3) dance instructors."
Union Battle puts Camp in middle
In previous years, the School Board funded the Summer Camp, but 2015-16 budget challenges - with a reduction of 45 jobs -- including 20 teaching positions - prompted a School Board cleft over whether to fund an extra-curricular summer program or use the money to restore staffing.
"If we can't afford the regular stuff during the school year, how can we afford to pay for extra things in the summertime?" said School Board member Ronald Barstys.
At a special meeting on June 11, Bianco urged the board to fund the summer camp, explaining that almost every one of the 45 persons whose positions were cut was offered another position and that downsizing was caused in large part by retirement.
Union Presidents Marcus Latham, (Niagara Falls Teachers local 801) and Michele Brocious (Teachers Associates United Local), attending the meeting, inveigled the board to keep staffing levels the same, arguing that the district should hire new people to replace retirees - leading to smaller class sizes - and that this was more important than extracurricular summer programming.
The school board employs about 1200 people to serve about 7100 students in what is presently the 32nd fastest shrinking city in the USA.
At the special meeting, a majority of board members - Barstys, Vincent A. "Jimmy" Cancemi, Art Jocoy Jr., Anthony F. Paretto and Robert M. Restaino - voted to table a vote to fund the summer camp.
Board President Petrozzi, Vice President Nick S. Vilardo and Kevin A. Dobbs voted against tabling the proposal.
School Board member Carm D. Rotella abstained from voting since as a member of both the School Board and the Housing Authority board she felt it posed a conflict of interest.
Dobbs also serves on the Housing Authority's board but declined to recuse himself.
Four of seven board members of the Housing Authority are connected to the school district: Bianco, Dobbs, Rotella and Frank Soda, a retired teacher.
Social Relevance of Camp
Explaining his decision to vote to use city funds for the school district's summer camp, Touma told the Reporter he believes it will save taxpayers money by reducing costs of law enforcement arising from crimes, including vandalism and arson, that, otherwise, idle teenagers might commit were they not in attendance at the summer camp.
"You know kids are kids," Touma said. "This is one of the easier funding choices the council has had."
Highly touted by its supporters as essential in helping keep teens and pre-teens out of trouble in Niagara Falls which has in the last four years become, based on population, New York State's most crime-riddled city - the summer camp will provide children who attend it with 52.5 hours of supervision out of the approximately 1800 hours of summer vacation time, which is nearly three percent of their total vacation time.
Deputy Superintendent of Schools Mark Laurrie told the Reporter that about 60 percent of the students who attend the afternoon summer camp are enrolled in summer school in the morning.
Bianco said, "They go right from summer school to lunch, then they choose a sport or activity and begin right after lunch at the summer camp. It's like having the students attending for a full day of school."
Among choices of recreational activities are ice hockey, baseball, basketball, bowling and dance.
Some activities are off campus such as bowling at the Bowl-O-Drome Lanes on Pine Avenue.
Council Chairman Touma, in explaining his support, told the Reporter he believed that as many as 1,200 children attended the program.
Dyster, in his request to the council for funding, said the number of attendees was approximately 800.
Bianco said the actual number of attendees last year was 510 and she expected a similar number this year. She said she believed the high attendance figure approached 600.
Council member Kristen Grandinetti, who is a teacher, chose to recuse herself based on her employment with the school district. She made a short speech at the council complaining about the contradiction of administrators securing high salaries while at the same time cutting jobs.
Grandinetti is an award winning member of Planned Parenthood, and has run afoul of her employers at the School District because of her Facebook postings, where she posted a video of six year old girls repeatedly using the word "F--k" and called the School District's failure to hire Planned Parenthood instructors to teach the district's sex-ed curriculum as "borderline criminal".
She has told her colleagues that the School District was "desperate" in their attempt to get Summer Camp funding and pointed out that the city already donated $60,000 to the Housing Authority for the summer.
Grandinetti is a kindergarten teacher at Henry Abate Elementary School.
A Spending Freeze
While finances are tight and remedies are being employed and debated at the Niagara Falls School District, there are mixed messages coming from the Dyster administration about City finances.
Earlier in the month city officials unveiled a report from one of the mayor's outside consulting firms, Bonadio and Co., LLP, of Amherst, which calculated that the City of Niagara Falls ended 2014 with a $7.6 million deficit.
Last week Dyster wrote to all department heads that he was imposing an immediate spending freeze for them which included a freeze on hiring, regardless of classification, and all overtime or acting pay, "without the prior approval of the City Administrator."
"You are to cease spending on discretionary items regardless of the fact that surplus may exist in any of your respective budget lines from which funds may be accessed.
"All purchase orders must be pre-approved by the City Administrator," Dyster wrote on June 15 to his department heads.
Just prior to the spending freeze, Dyster created several new positions at City Hall and filled a long-vacant position with individuals who worked on campaigns of Dyster-supported council candidates in 2013.
They include Johnny Destino (new hire), Nick Melson (new hire), Ryan Undercoffer (new position) and Brooke D'Angelo (new hire and new position).
Recent Expenditures Proposed by Dyster, Approved by Dyster Majority on Council
Dyster persuaded his council majority of Touma, Grandinetti and Charles Walker, to fund or set aside funding this election year for:
** concerts, most recently the Blues Fest,
** $150,000 for a Penguin habitat,
** $500,000 for renovations of an abandoned fire hall for a not-for-profit whose executive director left town hours before the funding request was approved,
**$33,000 to demolish a home that the same not-for-profit failed to fix properly which collapsed,
** $150,000 for a not-for-profit to pay their tax liens,
** $1.5 million to pay the state to pay a private company to host parties and events on Old Falls St. and ease the company's need to turn a profit by booking events at the Niagara Falls Conference Center,
** set aside $1.6 million for an animal shelter that appears to be halted,
** invested millions for a new train station that will be larger than almost every train station on the Amtrak Empire route - despite being one of the smallest cities - with one of the smallest annual ridership numbers, and without, as Dyster claims, knowing the amount of overhead the station will require once it is open,
** invested $350,000 for an exhibit,
**$50,000 to promote a planned sculpture on a traffic circle on Rainbow Blvd.,
** $670,000 to gift to a short list of Third St. and other downtown businessmen, a number of whom have donated to Dyster's campaigns in the past,
** $30,000 for a not-for-profit where his father sits on the board of directors,
** $26,000 for a portable, floating canoe launch at Griffon Park.
Dyster's request for more than $300,000 for a new paved golf cart trail at Hyde Park has not been approved yet.
Still to come is a new Cricket field on 61st St for a price to be determined to accommodate a cricket team from Amherst and Buffalo.
Conversely, Mayor Dyster's spending freeze will curtail the number of seasonal employees and impose a cut in funding for city parks and playgrounds.
The spending freeze can reduce the number of lifeguards at Hyde Park's Olympic pool, which may be used to shorten pool hours saving more money.
A Niagara Falls Reporter tour of 12 playgrounds in the city found five of them -- South Junior, Norlock, Liberty, Gluck and Legends Parks do not have water fountains.
With a spending freeze in place, Dyster can shave off as much as $50,000 in plumbing expenses by not putting water fountains in the playgrounds for fiscal 2015.
The absence of water fountains at four of these playgrounds requires the city, on days where the temperature is above 75 degrees, to close within an hour of serving county-sponsored lunches to children through the administration of the city Youth Services Bureau out of fear that children will become dehydrated.
The closure of the four playgrounds by 2 pm on warm days saves the city money by not having to pay seasonal employees to supervise the playgrounds for a full day.
The Legends playground can remain open on warm days however since children can obtain water offsite at a nearby Main St. drinking fountain.
Bed Tax Money Spent Differently
Dyster, in defending the school district summer camp expenditure, said, in his funding request, that the $100,000 comes from the city's 2014 hotel "bed tax" which hotel owners are required to charge for room occupants at their hotels.
Dyster will spend 39 percent of the total bed tax balance of $257,000 for the summer camp.
"No property tax revenues or casino revenues are involved," Dyster wrote, devising a system to segregate public money based on its origin to create his own rubric on how taxpayer money is spent.
While Dyster and his controller Maria Brown have separated bed tax monies, crediting these to a special tourism account, the 2007 amendment to the 1991 bed tax law requires that "All revenues resulting from the imposition of the tax under this local law shall be paid into the treasury of the City of Niagara Falls and shall be credited to and deposited in the General Fund account of the City of Niagara Falls."
The law does not require bed tax monies to be used for tourism objectives but directs that it shall not be segregated into a special account but rather "shall be retained by the City of Niagara Falls for any City purpose."
One-Time Subsidy for Summer Camp
Touma said the $100,000 taxpayer gift to the school district for the summer camp is a one-time subsidy, and that school board officials made a verbal promise not to ask for funding next year.
Council member Robert Anderson, who also voted for the measure, said that this will be the only time he will support the funding.
"If they come back looking for it next year, it will be a non-starter, as far as I'm concerned," Anderson said.
Touma said he expected the district would abide by their promise, but stopped short of pledging he would not fund the summer camp next year if the school board again made a request.
Choolokian Calls Dyster Move Political
Councilman Glenn Choolokian, who is running in the Democratic primary for mayor against Dyster, was the sole vote against funding the summer camp.
He pointed out that the City gives $1 million per year to the School District out of casino revenues, that there is a $7.6 million city deficit, and that the mayor just imposed a spending freeze, after hiring several people at city hall who, he believes, were hired more to help Dyster win an election than for their services to city government.
"I always support the children of Niagara Falls," Choolokian said, "but the mayor has cut our own city-run summer youth programs, so why should we fund someone else's program - which their own board won't fund?
"This is clearly the mayor in election mode, spending money where he thinks he can buy the most votes."
The Finance Panel
In lobbying to secure funding for the summer program, School Board President Petrozzi worked with Dyster to arrange the last minute council request to ensure the survival of the summer program.
About a month earlier, Petrozzi was appointed by Touma to the city council's Niagara Falls Financial Advisory Panel, a volunteer group formed to review some of the city's finances.
Petrozzi said he did not see any conflict in promoting city funding of the school's program, since, as a newly appointed city finance panel member, he has not attended a meeting.
Touma established the panel earlier this year with the provision that City Controller Maria Brown can withhold any information from the panel she deems "confidential".
Touma appointed other members to the Finance Panel who are connected to the school district including the chairman of the finance panel, Touma's former boss, Carmen Granto, who is brother of Touma's present boss, Bianco, who succeeded her brother as superintendent of schools.
Touma also appointed to the Finance Panel, Frank Soda, a former social studies teacher, former council member and former Niagara County Democratic Party chairman, who is a current board member of the Housing Authority.
Soda said there was no conflict of interest caused by his serving on both the City Finance Panel and the Housing Authority. The Finance Panel has been asked by Touma to provide recommendations for the Dyster administration on how to prevent its annual deficits and tax increases and to figure out how the city remains in financial trouble despite receiving more than $168 million in casino revenue since Dyster first took office as mayor in 2008.
What is a Conflict?
Election and municipal law attorney, Peter Reese said that conflict of interests are based both on the New York State Public Officers Law, local ethics laws, and common law.
"The fact that a local councilman is employed by an entity with business before the council does not necessarily require his recusal, especially if his role as employee has nothing to do with the issue before the council, and his salary is unaffected.
"But not only at issue is whether a public official directly gains from a matter before his board but whether he might lose something by voting against an employer's matter through reprisals or fear of reprisals. That also needs to be considered," Reese said.
In Zagoreos v. Conklin, the Court found that, even in the absence of any attempt by the applicant-employer to improperly influence the board member-employees, "human nature, being what it is... it is inconceivable that such considerations did not loom large in the minds of the [board member-employees]. Under these circumstances, the likelihood that their employment by the [applicant-employer] could have influenced their judgment is simply too great to ignore."
Touma, Fruscione differ on recusal
Touma's election to the council, in 2014 and as chairman, in 2105, has given him the opportunity to appoint individuals connected to the School Board to his Finance Panel, to vote against matters not favored by his employers and vote for programs favored by his employer.
Former Council Chairman Sam Fruscione and Council Member Chris Robbins were school teachers and who, as council members, always abstained for voting on school district matters that came before the council. Fruscione told the Reporter that he was advised by Acting Corporation Counsel Thomas O'Donnell that it was a conflict of interest for a council member to vote on a matter of funding for his employer.
Fruscione said, "I always put the needs of the children first and oftentimes found myself advocating and finding ways to get initiatives passed for the district by lining up votes while abstaining myself. But at the end of the day, votes or no votes, the law department said it was a conflict and I abided by that decision."
In March 2014, Touma and Grandinetti both voted as council members to support the position of their employer by opposing a proposed charter school in the city that the School District asserted would take revenue away from the district and cause staff cuts in city schools.
At the time Touma said the issue does not affect his job because he is not in danger of losing it because he has seniority.
Grandinetti said she was not conflicted in voting against a charter school that might cause her to lose her job because if she were to lose her job, she has another career to fall back on.
"I feel that I have a responsibility as a public servant and as an educator to stand up for the children; that was what motivated me," Grandinetti said at the time.
Touma Saw It Through
Whether he was conflicted or not, Touma for reasons that he says were for the welfare of the children of the city, managed to get the Summer Camp funded – by city taxpayers.
In 2014, Touma earned $102,372 from the Niagara Falls School District, according to SeeThroughNY.net, a website that lists public employee's salaries in New York State. This was up from $92,000 in 2013, the year before he began his term as councilman. In addition to his school district earnings, Touma earns $12,000 as a council member and, starting this year, an additional $9,700 for his opting out of the health insurance plan, bringing his income to more than $124,000.
The median income for a household in Niagara Falls is $26,800, and the median income for a family is $34,377 with 23% of the population below the poverty line.
Perhaps the best known quote that bears nearest a standard for conflict of interest decisions was articulated in Meinhard v. Salmon (1928) by Chief Judge of the New York Court of Appeals, Benjamin Cardozo, who said, "A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior... the level of conduct for fiduciaries [has] been kept at a level higher than that trodden by the crowd."