After the Niagara County Legislature Chairman Keith McNall's reelection notice was sent to media outlets from a county employee's email during business hours, he vowed to refer the "strictly prohibited" act to the Board of Ethics.
A referral could be submitted to the body in writing by any citizen in the form of letter or other correspondence, but McNall elected to submit a resolution to legislative colleagues notifying the board of his desire for an inquiry but the vote has not yet happened. McNall instead sent it to committee for further review earlier this month.
McNall, R-Lockport, said his decision to send the bill to committee resulted from "legal concerns brought to my attention by our county attorney." County Attorney Claude Joerg said this week he did not remember providing the advice.
"I don’t recall that being my direction," Joerg said.
If the board does investigate the matter, the five members who would be tasked with overseeing the investigation were all appointed by McNall and approved by a majority vote of the legislature in the past two years.
The chairman continued to not respond to requests for comments concerning the incident and matters related to it this past week.
McNall has issued one prepared statement concerning the distribution of his reelection notice under the county from Public Information Office Douglas Hoover's email address on Sept. 30. Hoover has repeatedly declined to comment. The chairman called the action "strictly prohibited" and denied involvement in it.
Minority Leader Dennis Virtuoso, D-Niagara Falls, said the incident should be referred to District Attorney Caroline Wojtaszek's office due to potential conflicts of interest on the board and a prior legislature vote that defeated his call for a legislative investigation independent of the ethics oversight body.
"Every aspect of this should be looked at," he said.
Majority Leader Randy Bradt, R-North Tonawanda, said he did not see the opportunity for conflict. McNall was not the sole mechanism by which board members were appointed because of the legislative confirmation step, he added.
"I would 100-percent hope and feel that we selected people that would be impartial," he said.
As to whether the politicking with county resources constituted a violation of law, Wojtaszek said, "it depends upon the circumstances." She listed variables such as "amount of times it happened, the intent, cost or loss of county services."
"So many factors can change the analysis," she said. "I am not going to work off of an alleged set of facts – only sworn statements, under oath, obtained by law enforcement."
Wojtaszek's office has not been asked to investigate the matter, she said.
According to the county's code of ethics, a complainant's submission to the board must disclose their identity and sign their written correspondence. After a complaint is submitted the board makes a determination as to whether "on its face" the allegation constitutes a violation.
Joerg said that determination takes place in a vote held by the five-person body. If a potential violation is suspected, the individual charged has fifteen days to respond to the allegation. In it, the accused "shall either admit the violation or state facts supporting a denial of the charge," the code says.
The board subsequently makes a decision as to whether to dismiss the charge or conduct a "fact hearing," consisting of sworn testimony, affidavits or other documentary evidence the board allows.
The county legislature can give the body subpoena power to compel testimony or obtain documents with a resolution submitted for a floor at the request of the ethics board chairman. Any subpoena request will be kept confidential, the code says.
Proceedings will be public, Joerg said.
"Any proceedings we have in the county are open to the public," he said.