It is ORDERED, that the petition by Joanne Gray, for an Order (1) directing that the decision of the respondents dated June 13, 2007 be vacated, annulled and set aside; (2) declaring the decision dated June 13, 2007 to be arbitrary, capricious, illegal, improper and not based on law or fact; and (3) dismissing the entire proceeding including the complaint filed November 16, [*2]2007 as fatally tainted by prejudicial conduct and violations of law; is decided as follows:

At the time of the commencement of the instant proceeding, the petitioner was an elected member of the Town Council of the Town of Smithtown and was engaged in a re-election campaign. It appears that in November, 2006, Councilman Edward Wehrheim submitted a letter to the Board of Ethics for the Town of Smithtown setting forth his objection to letters petitioner had mailed to certain town residents in connection with a lottery for boat slips. Wehrheim objected to the inclusion in the mailing of a newspaper article regarding the marinas in the Nissequogue River and an upcoming lottery, as well as the inclusion of a refrigerator magnet which was a replica of a business cared with a calendar, list of Town of Smithtown department telephone numbers, and an email address for the petitioner which she admitted was not her official town email address. A town employee participated in the preparation of the mailing which was sent to residents at town expense.

The respondent Ethics Board scheduled hearings for May 3, 2007 and May 25, 2007. Upon advice of counsel, the respondent chose not to appear at either hearing. At the close of the proceedings the Ethics Board made findings of fact, including:

1. In settlement of a long standing dispute over the usage of boat slips located in the Nissequogue River State Park, a lottery was scheduled to determine which individuals would have the right to utilize the boat slips. The Town had a waiting list of approximately 2,633 residents interested in utilizing the slips.

2. In November 2006, Councilwoman Joanne Gray mailed notices to between 800 and 900 residents advising them of the lottery. The mailing contained the following items: a letter from Councilwoman Gray explaining the lottery; a newspaper article from the Smithtown Messenger dated May 18, 2006 entitled "Final decision for KPPC Yacht Clubs", with the tone of the article favoring Councilwoman Gray and criticizing other Town officials; a boat slip lottery registration form and informational letter; and one of two types of magnets, either a business card with a color photograph of Councilwoman Gray or a calendar with phone numbers of various Town Departments and a color photograph of Councilwoman Gray.

3. Both magnets contained the following address: "[email protected]" which appears to be a combination of a website address and an email address, with neither being an official address of the Town of Smithtown. At the time of the mailing the Town Board members had official email addresses.

4. Town employee Judith Dollard prepared mailing envelope labels for 120 of the letters.

5. The mailing was sent out by a Pitney Bowes postage meter with the number 00043993869, which is the same meter number for the Town of Smithtown's postage meter located in Town Hall.

The Board of Ethics issued a decision dated June 13, 2007 in which they concluded that the subject mailing was actually a political mailing, and not an official mailing from the Town. The decision set forth that the Board was most concerned by the inclusion of the magnets, which were paid for by Gray's campaign funds. The Board found that while the magnets did contain official contact information for Councilwoman Gray, they also contained what appeared to have been intended to be an email address to contact Gray, although an official town email address existed at the time. The Board further found that the term "Friends JG" was an abbreviation of "Friends of Joanne Gray", the latter being the title for Councilwoman Gray's campaign account.

Based on the foregoing, the Board determined that Gray's actions were political and not governmental, and were in violation of Code of the Town of Smithtown sections 30-4 "Conflicts of Interest", 30-10 "Use of Town Property", and 30-11 "Treatment of the Public". Based upon the foregoing, the Board imposed a civil monetary penalty in the amount of $3,500.00 under section 30-21 of the Code of the Town of Smithtown, stating that such penalty would "defer future conduct by Town Officials and employees."

Section 30-21of the Code of the Town of Smithtown entitled "Decisions and Determination and orders; and fines and penalties" provides, in pertinent part:

C. The assessment of civil penalties under the applicable law and

procedures shall not preclude the referral of an appropriate violation

to a prosecutor for a prosecution of criminal charges, except where

the violation is imposed under the General Municipal Law §812,

Subdivision 6, for failure to file or a false filing of an annual

statement.

D. If the alleged violation has been established and the Board

determines in light of all the circumstances that the violation is not

serious enough to warrant assessment of a civil penalty or if the

imposition of civil penalties is not otherwise authorized by law,

the Board of Ethics, in its discretion, may take such other action

as appropriate, including but not limited to a written admonition

or a recommendation that disciplinary action be taken or a referral

to a prosecutor for prosecution of criminal charges. The Board of

Ethics shall forward a copy of such admonition or recommendation

for disciplinary action to the Town Board.

The Ethics Board cited the above section as a basis for its assessment of a civil monetary penalty. The Court finds that such section of the text of the Code does provide the Ethics Board with the authority to impose a monetary penalty against the subject of an Ethics Board inquiry or complaint.

Based upon a review of the record of the proceedings, which were conducted without the [*4]participation of petitioner upon her own choice, the Court does not find the decision of the Board of Ethics to be arbitrary, capricious and/or improper. Accordingly, the application to vacate, annul and set aside the entire decision of the Town of Smithtown Board of Ethics dated June 13, 2007 is denied.

The foregoing constitutes the Order of this Court.

Hon. Denise F. MoliaJ.S.C.