COUNTY OF ERIE

DEPARTMENT OF LAW
MEMORANDUM
To: Jeremy Toth, County Attorney
From: Aaron Rubin, Assistant County Attorney
Date: September 8, 2023
Re: County Executive Participation in Cultural Funding Program Appropriations

QUESTION
I was asked to review whether the County Executive needs to recuse himself
from the 2024 County Budget appropriation process with respect to the County Cultural
Funding Program, due to a prior romantic relationship with the executive director of a
cultural organization that applied for 2024 funding.

ANSWER
Based on the information provided to the Law Department about the
relationship, there is no legally prohibited interest, and the County Executive is not
required to abstain from any part of the 2024 County Budget appropriation process or
make a formal disclosure.

FACTS
The facts as relayed to the Law Department are that the County Executive’s
relationship with his former romantic partner (the “Organization Director”) was
intermittent for several months and ended at some point earlier in 2023. The County
Executive and the Organization Director had no legal, business, or property
relationships, did not cohabitate, and were not engaged to be married.
Another former romantic partner whose relationship with the County Executive
ended recently, and who filed a police report accusing the County Executive of
aggressive behavior he denies, alleged in an e-mail to the Deputy County Executive that
the relationship with the Organization Director was an affair carried on behind her back
from 2022 to present, that the County Executive previously assisted in securing funding
for the organization, which led to the Organization Director’s promotion to her current
position, and that the County Executive recently met with the Organization Director at
the organization’s offices after normal business hours to discuss problems she was
encountering with the organization’s board of directors.
 We have not been informed of any discussions between the County Executive
and the Organization Director relating to the 2024 Cultural Funding Program or
confidential information concerning County business. We are also unaware of any
ongoing circumstances that could be deemed to potentially influence the County
Executive inappropriately with respect to the 2024 Cultural Funding Program, or to be
otherwise compromising. Because the allegations e-mailed to the Deputy County
Executive if true would not require recusal or disclosure with respect to 2024 funding,
we did not conduct our own factual investigation since confirming the allegations would
not change our analysis as discussed below.
The Erie County Cultural Funding program is administered by the Department of
Environment & Planning (“DEP”) and provides general operating support grants to non-
profit arts and cultural organizations within the County. The annual process begins with
applications from cultural organizations, which are then reviewed and scored by DEP
and the Erie Arts and Cultural Advisory Board (“EACAB”), composed of 15 volunteer
members who are bound to EACAB’s own stringent Conflict of Interest Policy in addition
to the Erie County Code of Ethics.
DEP includes grant recommendations based on that scoring in its departmental
budget request to the County Executive and Budget Division. The County Executive
evaluates the cultural organization grant recommendations with the Capital Projects
Committee, resulting in the final recommendations in the Proposed Budget. After
consideration of the County Executive’s Proposed Budget, appropriations are ultimately
made by the County Legislature in the annual County Budget. In last year’s Cultural
Funding Program process, the County Executive recommended in the Proposed Budget
a smaller grant to the organization in question than it applied for or than recommended
by EACAB and DEP.

DISCUSSION
There are two types of conflicts of interest or conduct that might require the
County Executive to recuse himself from one of his normal duties: (A) activity expressly
defined as a conflict of interest or prohibited by a state statute, local law, or official
policy, and (B) less commonly encountered relationships or interests that do not meet
any codified definition of a conflict of interest but are deemed similar enough that the
underlying public policy justifies the same treatment. Here, the County Executive’s
former or current romantic relationship with the Organization Director does not appear
to be either type of conflict with respect to the 2024 Cultural Funding Program
appropriation process.

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 A. Codified Conflict of Interest Rules.
The two laws applicable to this question are the Erie County Code of Ethics, Local
Law No 2 of 2018 (the “Code of Ethics” or “Code”), and Article 18 of the General
Municipal Law (titled “Conflicts of Interest of Municipal Officers and Employees”). The
County’s Fraternization Policy does not apply, because it covers only relationships
where both parties are County employees or officers.
1. The Code of Ethics
While the County Ethics Board is the official authority on compliance with the
Code of Ethics, the Code does not appear to deem the County Executive’s former
relationship with the Organization Director or the organization’s 2024 Cultural Funding
Program application an “interest” or potential conflict requiring disclosure or recusal.
That is because § 3(e) of the Code defines an “interest” as “a direct or indirect
pecuniary or material benefit to a covered individual [such as the County Executive] or
his relative,” and the “relatives” defined in § 3(i), who have the only interests that can
be imputed to a covered individual, comprise only a spouse, child, stepchild, stepparent,
or descendants of the grandparents of the covered individual or the covered individual’s
spouse.
There do not appear to be any direct or indirect pecuniary or material benefits to
the County Executive personally from recommending for or against 2024 appropriations
to the cultural organization in question. No direct or indirect benefits to the
Organization Director are deemed an interest of the County Executive, because a former
or current romantic partner he has not married is not a “relative” whose interests may
be imputed to him pursuant to the Code.
We are also unaware of any reason to believe discussion and advice concerning
the Organization Director’s relationship with her board related to any matter before the
County, and so long as there is no untoward activity prohibited by Section 6 of the Code
occurring, there are no disclosure or recusal requirements.
2. General Municipal Law Art. 18
GML Article 18 provides baseline conflict of interest rules for local government
officers and employees statewide, but the provisions relevant to this matter either have
the same effect or are superseded by County’s Code of Ethics, and therefore also do not
require the County Executive to recuse himself from the 2024 Cultural Funding Program
appropriations process.
GML § 801 prohibits municipal officers and employees (including the County
Executive) from having an interest in any contract with their municipality when the

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officer or employee “individually or as a member of a board, has the power or duty to
(a) negotiate, prepare, authorize or approve the contract or authorize or approve
payment thereunder (b) audit bills or claims under the contract, or (c) appoint an officer
or employee who has any of [those] powers or duties.”
For the purposes of § 801, “’[i]nterest means a direct or indirect pecuniary or
material benefit accruing to a municipal officer or employee as the result of a contract
with the municipality which such officer or employee serves,” which is deemed to
include contracts of a spouse, minor children and dependents, as well as contracts of an
entity of which the municipal officer or employee is a member, director, officer,
employee, or owner. § 800(3). “’Contract’ means any claim, account or demand against
or agreement with a municipality, express or implied,” § 800(2), but not contracts with
non-profit corporations. § 802(1)(f). That excludes any potential appropriation or award
to the cultural organization in question as a basis for disclosure or recusal, since there is
no “contract” or “interest” based on its non-profit status, and no enumerated
relationship that could impute an interest to the County Executive.

B. Public Policy.
Public officials are held to a high standard of conduct, and courts or other bodies
considering ethical issues occasionally hold that conduct is impermissible, when
“although not violating the literal provisions of article 18 of the General Municipal Law
or a code of ethics, [it] violate[s] the spirit and intent of the statute, [is] inconsistent
with public policy, or suggest[s] self-interest, partiality or economic impropriety.” 1993
Ops. St. Comp. No. 93–23; Schweichler v. Vill. of Caledonia, 45 A.D.3d 1281, 1283 (4th
Dep’t 2007) (annulling a site plan approval where planning board members
demonstrated prejudice and actual bias on the matter by signing petitions in favor of
the project and writing in support to another official based on personal considerations).
Romantic, friendship, and other informal personal relationships exist on a
spectrum, and cannot be considered analogous to a spousal relationship. See NY Eth.
Op. 660 (N.Y. St. Bar. Assn. Comm. Prof. Eth. 1994). In the dating context, where couples
rarely share the same “community of financial interests” as spouses, it is difficult to
precisely “determine when friendship and warm regard become so fraught with
emotion as to provide a basis for disqualification.” Id. While some informal relationships
do reach a level requiring disclosure or recusal, the circumstances here are more like
cases where municipal officials did not have to recuse themselves or disclose a non-
family relationship.
In Becallo v. Zambrano, 132 A.D.3d 1261, 1262 (4th Dep’t 2015), a Town of
Cicero resident petitioned for the removal of the Town Supervisor, on grounds including

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that the Supervisor was in a several-years-long romantic relationship with an employee
of an engineering firm the Town contracted with. The Supervisor signed the contract
with the firm and approved invoices for work performed by her romantic partner, and
she purchased a one-half interest in his residence, with him holding a mortgage from
her. Id. In holding that the personal relationship was not a conflict of interest, the Court
stated that GML § 801 was irrelevant because the relationship did not fall under any of
the GML § 800(3) categories, and looked to the language of the gift prohibition in GML §
805-a(1) in determining that it could not “reasonably be inferred that the financial
arrangement was intended to influence [the Supervisor], or could reasonably be
expected to influence her, in the performance of her official duties or was intended as a
reward for any official action on her part.” Becallo, 132 A.D.3d at 1262.
The relationship in Becallo was formally disclosed, but in a case where a town
board member was challenged for voting to approve a proposed wind energy project
that included a turbine on the board member’s property and for failing to publicly
disclose the potential conflict of interest, the Fourth Department held that where no
agreement between the energy company and the board member had been entered at
the time of the vote, there was no conflict of interest or improper failure to disclose that
would justify granting the petition to remove the board member. Hedman v. Town Bd.
of Town of Howard, 56 A.D.3d 1287, 1288 (4th Dep’t 2008).
In a New York State Department of Education proceeding considering allegations
two school board members should be removed for voting on resolutions where they
had friendships or family/personal relationships with the subjects of the resolutions, the
Commissioner of Education found that there were no violations of GML Article 18 or
grounds for removal under the Education Law where there was no direct or indirect
pecuniary or material benefit to the school board members from the resolutions. 53 Ed
Dept, Decision No. 16593, 2014 WL 1051471 (NYCOMMED 2014).
Impermissible uncodified conflicts of interest are more often found when there
is a formalized legal or economic connection between the municipal official and the
result of an official action or a party that stands to benefit from it. See Titan Concrete,
Inc. v. Town of Kent, 202 A.D.3d 972, 974 (2d Dep’t 2022) (affirming invalidation of a
local law that would result in the closure of a concrete plant when the town supervisor
was a member of an organization that sought closure of the plant in a different
proceeding and presided over public hearings on the local law despite recusing herself
from voting on it); Zagoreos v. Conklin, 109 A.D.2d 281, 287 (2d Dep’t 1985) (affirming
setting-aside of planning approvals sought by a utility company where decisive votes
were cast by zoning board of appeals and town board members were employees of the
utility); Tuxedo Conservation & Taxpayers Ass'n v. Town Bd. of Town of Tuxedo, 69

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A.D.2d 320 (2d Dep’t 1979) (holding there was an impermissible conflict of interest
where a town board member also employed as a vice president of an advertising agency
voted on preliminary approval of a property development where the developer was a
subsidiary of one of the advertising agency’s clients).
However, not all business relationships require recusal or even disclosure. 1991
Ops. St. Comp. No. 91–48. For example, employment of municipal officials by the
proponent of an application the officials will vote on is not always a conflict of interest
nor is failure to disclose the employment relationship disqualifying where the officials’
duties and compensation in their capacities as employees of the applicant are unrelated
to the subject of the application. De Paolo v. Town of Ithaca, 258 A.D.2d 68, 72 (3d Dep’t
1999).
While conflict of interest restrictions applicable to attorneys are sometimes
instructive in considering a public official’s potential conflict of interest, Tuxedo
Conservation & Taxpayers Ass’n, 69 A.D.2d at 325, and there are very few analyses of
conflicts based on a municipal official’s romantic relationships, much stricter
requirements apply to disqualifying an attorney from representing a client. In the
context of criminal law, where proceedings are adversarial and the appearance of
propriety is at its greatest importance, even a “scintilla of partiality” that might be
acceptable in other contexts, “is intolerably suspect and prejudicial to the public's
regard for the criminal justice system,” so an unmarried prosecutor and criminal
defense attorney who frequently date may not appear opposite one another in the
same matter because each could be assumed to have a personal interest in the other’s
reputation, success, and welfare. NY Eth. Op. 660. Some conflict-of-interest
considerations applicable to a defense attorney’s romantic relationship with a police
officer are relevant here, such as how the closeness of the relationship or potential for
revealing confidential information impact the risk of personal interests adversely
affected professional judgment, but others such as the possibility of cross-examining a
romantic partner do not. See NY Eth. Op. 1255 (N.Y. St. Bar. Assn. Comm. Prof. Eth.
2022). In municipal government, however, personal entanglements are not disqualifying
when there is not a potential material gain to the official that can be traced or evidence
of bias, See Becallo, 132 A.D.3d at 1262.
Here, there is very little similarity to cases where a municipal official was found
to have a conflict of interest, even if the allegations e-mailed to the Deputy County
Executive were true. Most importantly, there is no circumstance alleged where the
County Executive stands to gain a pecuniary or material benefit from an award to the
Organization Director’s organization or from the Cultural Funding Program at all, either
directly or indirectly via a person or entity he has a legal or economic relationship with.

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We are not aware of an allegation that the County Executive has expressed any bias in
favor of or against the organization, or that he has prejudged its 2024 Cultural Funding
Program application. Discussion and advice concerning the Organization Director’s
relationship with her board of directors is not indicative of potential impropriety, since it
does not appear to have concerned any business before the County.
The nature of the romantic relationship also does not appear to be at a level
where it would be deemed to interfere with a municipal officer’s judgment or
reasonably be seen to in the absence of a potential material benefit. The County
Executive does not cohabitate with the Organization Director like the Town Supervisor
did with the engineering firm employee in Becallo, their relationship was or has been
shorter, and they are not engaged. While possibly embarrassing, if the relationship with
the Organization Director was in fact a concealed affair that has now been revealed, it
would not suggest potential improper influence, since the relationship was not exclusive
and there is no potentially compromising secret that could be leveraged to extract
hypothetical concessions.
Accordingly, there does not appear to be an interest or circumstance requiring
treatment similar to conflicts of interest expressly prohibited in the Code or GML Article
18.

CONCLUSION
For the reasons discussed above, based on the facts provided to the Law
Department concerning his romantic relationship with the Organization Director, the
County Executive is not required to recuse himself from any part of the 2024 Budget
process, including consideration of applications for the 2024 Cultural Funding Program,
nor is he required to make a formal disclosure of the relationship. While officers may
certainly exercise their judgment and make voluntary disclosures in excess of
requirements or err on the side of caution where recusal is concerned, the alleged
circumstances are unlike those where municipal officers have been required to recuse
or disclose a potential conflict of interest.