Questioning the water authority

Conflict-of-interest question brings threats of lawsuit from a powerful lawyer and planning board member, By Pamela Chergotis GOSHEN — Orange County is at a critical moment in planning its water use. The water master plan, revised after public outcry over proposed interconnections between water-poor and water-rich municipalities, goes before the County Legislature on Oct. 7. Water is crucial to growth in Orange County. Several housing developments in Goshen and Chester are stalled because there is not enough water to supply them. The demand for water in the villages of Goshen and Kiryas Joel is expected to outstrip supply by 2018, according to the master plan. Now is the time for public discussion and engagement. But when an environmental activist voiced concern at a public meeting about what she saw as a conflict of interest facing the chair of the Orange County Water Authority board of directors, she received, by way of response, letters threatening a defamation lawsuit from a powerful lawyer and member of the county planning board, himself the father of the water authority chair. Speaking out After attending several meetings about the county's proposed water master plan, Sandra Kissam's main worry was that the plan was not going to get a state environmental quality review. At the meetings, Kissam, an environmental activist, claimed that Marcia Jacobowitz, the chair of the Orange County Water Authority Board of Directors, had a conflict because she worked for a firm that represents many big developers in the county. In response to inquiries from the Chronicle, Marcia Jacobowitz explained: “If a situation should arise wherein there is or may be a conflict of interest in my role as Chairwoman of the Orange County Water Authority and as an attorney in the law firm of Jacobowitz & Gubits, I would acknowledge the potential conflict and recuse myself from discussions as necessary.” But that was not the response Kissam got. Soon after expressing her concern, Kissam started to receive letters from Marcia’s father, Gerald Jacobowitz. The elder Jacobowitz, who denies the conflict of interest charge, is the senior partner of Jacobowitz & Gubits, the law firm Marcia joined in January. He is also a member of the Orange County Planning Board. In the first letter, Gerald Jacobowitz called Kissam’s “scheme, plan and design to defame me and members of my family” denigrating, vitriolic and malicious. The letter's purpose, he wrote, was to make Kissam aware that “your conduct does reach my ears, that you are engaging in defamatory conduct.” He attributed her actions to “enthusiastic devil-may-care and reckless pursuit of your public policy beliefs,” and questioned her motivation for going “down this dark road.” He wrote that he would withhold from Kissam the extra consideration he normally gives widows and orphans, and advised her to ask God’s forgiveness on Yom Kippur. Kissam did not respond to this letter. She then received a second letter, dated Aug. 3, in which Gerald Jacobowitz ordered Kissam to “cease and desist this defamatory conduct which is being engaged in with a malicious purpose and intent.” Kissam is best known as the head of the Stewart Park Reserve Coalition. She led the successful, yearlong fight to save the open lands around Stewart Airport for public recreation. After receiving the second letter from Gerald Jacobowitz, Kissam called The Chronicle, which shortly thereafter received a call from Gerald Jacobowitz. Jacobowitz told The Chronicle he was going to sue Kissam for defamation and call the editor as a witness. He said there was no conflict of interest in the water authority case “in law or in fact,” but would not explain further. “What does water have to do with development?” he asked. A fair question The water authority has broad and far-reaching powers. It can borrow money, enter into contracts, buy or condemn land, build water facilities, produce and develop water, and “do all things necessary, convenient, or desirable to carry out its purposes.” With power comes potential for its abuse. (Please see sidebar for background on water authority board members.) Of course, multiple association does not mean wrongdoing. Blooming Grove Supervisor Frank Fornario, former chair of the Physical Services Committee, said he considered Marcia Jacobowitz a “very independent-minded person,” and would have voted for her again if he had the opportunity. But how can the public know their public officials are not serving the narrow interests of their clients? In theory, there are checks and balances to guard against abuse. The county’s code of ethics, adopted by the water authority in 2008, holds public officials to a high standard that rules out even potential and indirect conflicts. “A conflict or a potential conflict exists whenever an officer or employee has an interest, direct or indirect, which conflicts with their duty to the County or which could adversely affect an individual’s judgment in the discharge of his or her responsibilities,” the code says. The chair of the Physical Services Committee, Leigh Benton, said the county manages conflicts in three ways: through recusal, through the filing of disclosure forms, and through a review of citizens’ complaints by the county’s board of ethics. But Donald Nichol, an attorney for the Board of Ethics, called the board's authority “very limited.” While the board has“no shortage of legal talent,” it is not easily reached. “We have one part-time employee who works one afternoon a week, handling correspondence,” said Nichol. Nichol is also a senior partner at Jacobowitz & Gubits, but said, “I certainly wouldn't handle or advise the board on matters I might have a conflict on.” In real life, conflicts of interest fall into a gray area. “If you ask ten people, you’ll get ten different answers,” said Mark Davies, executive director of the New York City Conflicts of Interest Board and an adjunct professor at Fordham University School of Law. He said conflicts are not in the eye of the beholder but must be tied to some particular law. After reviewing the water authority’s ethics code at The Chronicle’s request, he wrote: “If the water authority member’s law firm represented the client for a fee, then the water authority member would be deemed to have an interest and would have to recuse as to that matter.” Marcia Jacobowitz’s disclosure form, which was due in January, days before she began at Jacobowitz & Gubits, lists her former law firm. But, she told The Chronicle, it will be updated in the next “reporting session.” In an e-mail to The Chronicle, Marcia Jacobowitz noted her 14 years of service as a volunteer board member and chair, and that she serves “at the pleasure of the County Executive and Legislature. I am mindful of the best interests of the County and have worked toward this end during my tenure on the Board.” The question Kissam raised is an important one, and Gerald Jacobowitz’s attempts to silence her present another difficulty. “Conflict or not, most clear-thinking people would think, ‘We have a problem here,’” said Professor Steve Davis, a department chair at the S.I. Newhouse School of Public Communications at Syracuse University. “Most would see this as a campaign of intimidation and, worse yet, intimidation by someone in a position of public accountability...who should be held to a very, very high standard.”

A conflict or a potential conflict exists whenever an officer or employee has an interest, direct or indirect, which conflicts with their duty to the County, or which could adversely affect an individual's judgment in the discharge of his or her responsibilities." Orange County code of ethics

Marcia Jacobowitz is a very-independent minded person. I would vote for her again if I had the opportunity." Frank Fornario, Blooming Grove Supervisor and former chair of Orange County Physical Services Committee

Who picks?
Who chooses the people who serve on the all-volunteer water authority board of directors? The county executive points to the legislature. The legislature points to the executive. Leigh Benton, chair of the Physical Services Committee, said Orange County Executive Ed Diana is really in charge of appointments to the water authority.
All agree that, first, the county executive gives his choices to the legislature’s Physical Services Committee. If the committee approves them, they proceed to the full legislature for a final vote. The legislature in August unanimously approved Marcia Jacobowitz’s reappointment.
Diana’s spokesperson, Orysia Dmytrenko, said the county executive “does not believe there is a conflict of interest” on the water authority board. “He just doesn’t believe that’s so.” She said Diana chooses board members carefully to get a range of expertise and representation from different parts of the county. But, she said, his picks are tempered by the county’s system of “checks and balances,” in that the legislature gets to reject them.
Blooming Grove Supervisor Frank Fornario was a county legislator for eight years. Before leaving the legislature last year, he joined with the Democrats in an unsuccessful attempt to get a government watchdog group for Orange County.
Fornario said that when he chaired the Physical Services Committee, he refused some of Diana’s suggestions, including one for the water authority board that he saw as “purely political.” In his eight years as a legislator, Fornario said, he and his fellow legislators were never asked to suggest people to fill empty seats on boards.

WHO’S WHO
Gerald Jacobowitz
Employment: Senior partner at Jacobowitz & Gubits Public sector: Member of the Orange County Planning Board
Since 1982, a member of the Executive Committee of the New York State Bar Association, Municipal Law Section
According to his Web site, “Jacobowitz has been village and town attorney for municipalities throughout the Hudson Valley."
Personal: Father of Marcia Jacobowitz
Marcia Jacobowitz
Employment: Associate at Jacobowitz & Gubits
Public sector: Member of the Orange County Water Authority since 1994 and chair since 2006 Personal: Daughter of Gerald Jacobowitz
Donald Nichol
Employment: Partner at Jacobowitz & Gubits Public sector: Attorney for the Orange County Board of Ethics
Attorney for the Village of Kiryas Joel
Jonah Mandelbaum
Employment: President of Devon Management
Client of Jacobowitz & Gubits Public sector: Member of the Orange County Water Authority
Major developer in Orange County, specializing in senior citizen housing
Daniel Patenaude
Employment: Owner of New York Bituminous Products, Chester, a road paving company that does business with the county.
Public sector: Member of the Orange County Water Authority
Robert Marchione
Employment: Accountant with Vanacore, DeBenedictus, DiGovanni & Weddell of Newburgh, which lists “construction” on top of its client base list. He has not yet filed a disclosure form with the county.
Public sector: Member of the Orange County Water Authority
Michael Worden
Employment: A former Port Jervis mayor who works in the facilities and administrative services department at SUNY Orange, Middletown
Public sector: Member of the Orange County Water Authority