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[*1]


Decided on June 6, 2008
Supreme Court, Suffolk County

26412-07
Attorney for Petitioner Lawrence Gray, Esq. 20 Fireplace Road Kings Park, New York 11758 Attorneys for respondent Sahn Ward & Baker, PLLC
333 Earle Ovington Blvd., Suite 601
Uniondale, New York 11553
Denise F. Molia, J.
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: "www.friendsjg@aol.com" 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.


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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

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