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Amherst Ethics Board member loses seat for violating town ethics code

A member of the Amherst Ethics Board has to give up his seat.

The reason? An ethical lapse.

Thomas M. Grace had 30 days to file a financial disclosure form after taking office Jan. 23, but he missed the deadline by four days. Under the terms of the ethics code, which the Town Board revised last month, Grace's seat is now vacant.

"The statute is clear," Town Attorney Stanley J. Sliwa said Monday. "It is considered abandoned."

Grace said in an interview he was not aware of the 30-day requirement. He said he had been unusually busy over the past month, with out-of-town travel, and that's why he didn't get the form in until late Monday morning after The Buffalo News informed him of the missed deadline.

"I knew it was something that I had to get done," Grace said.

It's up to the Town Board now to appoint someone to fill the vacancy on the Ethics Board. Supervisor Brian J. Kulpa said he needs to consult with the rest of the board on how to proceed.

Grace wasn't the only town official to file a disclosure form after the deadline, but he's the only one penalized by the ethics code.

Joseph Heins, the chairman of the Amherst Republican Committee, earlier this month lodged a complaint with the Ethics Board that three town officials – Grace, Town Board member Jacqualine Berger, and Joseph McMahon, the supervisor's chief of staff – had not filed their required disclosure forms as of Feb. 2.

The forms ask for information on the financial interests of the officials and their spouses, including real property, corporations, partnerships and self-employment activity.

In Heins' mind, under the town's ethics code the three officials automatically had forfeited their positions. That's because Berger joined the Town Board on Jan. 2, the same meeting at which the board approved the appointments of McMahon and Grace.

However, Sliwa has a different interpretation of the code.

Yes, Sliwa said, all three new officials had 30 days to file their disclosure forms. But, he said, the new code clearly states the penalty of losing your position applies only to appointees to boards or committees.

That means it doesn't apply to Berger, who was elected, or McMahon, who doesn't serve on a board or committee, Sliwa said.

To further parse the code, the clock on the 30 days doesn't start until the officials "take office," he said. For Berger, that was Jan. 2. But for McMahon, that was Jan. 16, when he started work for the town. And for Grace, that wasn't until the first Ethics Board meeting on Jan. 23.

Berger and McMahon filed their forms Feb. 16, within an hour of Heins' sending an email publicizing his ethics complaint. That means Berger – who dealt with a family medical issue – was 15 days late, and McMahon was one day late.

Grace faced a Thursday deadline to file, but he did not do so until late Monday morning.

Grace said he brought a copy of his financial disclosure form to the first Ethics Board meeting last month, and he attempted to submit it to the Town Clerk's Office after the meeting. But he said an employee told him the office closes at 4:30 p.m. and that he would have to return during regular business hours to turn in the form.

Grace never did, saying he thought he had more time. The code states officials must file within 30 days of taking office and then again by April 30 of every succeeding year.

Grace said he traveled extensively during the weeks after he took office. He said he had not even heard he was named in Heins' complaint until a reporter informed him of it.

"I'm kind of caught off-guard by the whole thing," Grace said.

Grace is active in the Working Families Party. Berger and McMahon are Democrats.

Heins said he disagrees with Sliwa and believes the penalty applies to Berger and McMahon, but at the least he wants the language changed to make that explicit.

"Basically, the Town Board has passed an ethics law but exempted themselves and their political appointees from any type of consequences," Heins said.

Sliwa said he couldn't comment on whether town officials asked to draft the code to exempt Town Board members or department heads from the penalty. He said any discussion would fall under attorney-client privilege.

He did say the Town Board could choose to reappoint Grace to the vacant seat.

Kulpa said he wasn't involved in the drafting of the code, which was approved at Kulpa's first meeting as supervisor, but he voted for and supports the tougher code.

"Everybody needs to play by the rules," Kulpa said. "File your ethics form. It's not that hard."

But he said he's not sure state law would allow the town to kick a member off the Town Board for failing to file a disclosure form, saying there's a high bar to remove an elected official.

He also said he's not sure whether someone should lose a job if they're one day late in filing a form, as was the case with McMahon. And he would not commit to renaming Grace to the Ethics Board.

"I think it would be unacceptable to reappoint somebody to the Ethics Board who has already shown he is unwilling to follow the ethics code of the town," Heins said. "If he's going to be in charge of enforcing the ethics code on other people, he should follow it himself."

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