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A public official's "poor choice" has real consequences for all of us

Oh, what a tangled web.

Councilwoman Jodi Giglio yesterday acknowledged she made “a poor choice” — in the words of Deputy Supervisor Tim Hubbard — when she traveled to New York City to meet with representatives of Triple Five, a developer looking to buy a massive tract of vacant land in the Calverton Enterprise Park.

Yes, you can say that again.

The trip to the city came on March 12, in between two sessions of a public hearing convened by the Community Development Agency to essentially decide whether to sell the land to that developer. Giglio and the four other town board members constitute the governing board of the Community Development Agency. She did not inform the other board members or the town’s legal counsel she was taking the meeting, which occurred the day before the already-scheduled date for the second session of the public hearing.

The only record of the discussion between Giglio and Triple Five on March 12, apparently, are handwritten notes made by the councilwoman, which she reviewed at yesterday’s work session during a discussion that was not on the board’s published agenda. Giglio announced at the conclusion of the agenda’s public business that she would like to review the discussions she had in the city that day and answer any questions the board has. Two Triple Five representatives happened to be in the audience yesterday for Giglio’s unannounced presentation to her fellow board members.

Giglio maintains that her private meeting with the applicants was for the purpose of “vetting” and “due diligence.”

Her colleagues on the board, with the exception of Councilman James Wooten, have criticized Giglio for taking the meeting. Supervisor Laura Jens-Smith and Councilwoman Catherine Kent are angry about it and had sharp words for Giglio during a tense meeting.

Hubbard, who said her decision to meet privately with the applicant during the pendency of a qualified and eligible hearing was “a poor choice,” said he believes Giglio did not mean any harm by taking the meeting, that she did it in good faith for the purposes she expressed.

I would like to believe that as well. For one thing, Giglio called me on the morning of March 13 to tell me about the meeting she had the previous day.

She was for the first time in many conversations I’ve had with her over the past year, positive about the pending sale of the EPCAL land to any entity that has anything to do with Luminati Aerospace. She had been an adamant opponent of the deal up to the week before. On March 7, during a snowstorm, she attended a Chamber of Commerce meeting where Triple Five made a presentation. The March 12 meeting was a result of a conversation she had with the company principal Nader Ghermezian at the chamber event, she told me.

During our March 13 phone interview I questioned Giglio about her opinion of the Triple Five proposal and she said she was now supportive of it. She said I should interview them directly and offered to set up a phone interview with Stuart Bienenstock of Triple Five and Steve Rogers, a Triple Five consultant. She told me she knew they were together in the office and could speak with me. Shortly after my call with Giglio, she texted me to say they would expect my call at 1:30 p.m. at a number she gave me. (I should note it was Bienenstock’s cell, which I already had.) I made the call and had an interview of more than an hour, during which I asked, and Bienenstock answered, many questions.

Later that afternoon, Giglio called me again to say the supervisor and town board were unhappy with her when they heard about the meeting. She said the town’s lawyers were also unhappy about it.

I had already interviewed the town supervisor about Giglio’s meeting. Frankly, it struck me as — at best — a fundamentally stupid thing to do. It certainly created an appearance of impropriety. At worst, it might have violated some rule or law.

That Giglio’s private meeting took place in the middle of a public hearing to decide whether the town will sell 1,644 acres of vacant land for $40 million to a mega-developer is no small thing. The board’s decision in this matter must be based on testimony and evidence in the record. What was said in the Giglio meeting is not part of that record. If nothing else, her “poor choice” has made the town vulnerable to legal action by any party aggrieved by whatever it decides in this matter. And that will cost taxpayers money, at a minimum.

Giglio’s action was a classic “ex parte communication” — a communication with any party to the proceeding by a member of the agency. The state administrative procedure law prohibits such “ex parte communications.” However the provisions of the state administrative procedure law do not apply to proceedings of local public authorities like the Riverhead CDA. They sure provide damned good guidance, though.

Giglio said more than once yesterday that members of the board often have meetings and discussions with applicants while these hearings are pending. She said that has been her experience in her eight years on the town board during which she previously participated in five of these “qualified and eligible” hearings, she said.

That just isn’t true. The town has not had five “qualified and eligible” hearings since Giglio took office in 2010. She cited two by name yesterday that took place prior to her election. There have been three Q&E hearings since Giglio took office. All three were closed on the same day they were opened. So there is no analogous situation to what just happened. 

If the councilwoman’s defense is admitting that she and other board members in the past have had outside discussions with applicants and made their decisions based on information provided to them privately that was not part of the public hearing record — well, that just leaves me speechless. First, that they’d do that. And second, that she’d admit it as a way to justify behavior that is clearly a violation of public trust, however well-intentioned it might have been. 

I’ve heard the “this happens all the time” argument before. It came from Riverhead’s former CDA director Christina Kempner after my March 13 article about Giglio’s NYC meeting the previous day. She was adamant about it. She’s adamant about a lot of things having to do with Luminati and Triple Five. Her enthusiastic advocacy of the deal took me by surprise. Text messages and emails from Kempner extolling the project — an email blast to undisclosed recipients declaring “this project is the best thing that could ever happen at Calverton,” for example — made me wonder if she was working for them as a consultant.

I asked Kempner that directly and she denied it — adamantly.

On March 18, in an email message with the subject line “it has to be said publicly,” Kempner sent me an op-ed titled “Let the Sun Shine” responding to Greg Blass’ column about Giglio’s ex parte meeting. In it, she defends Giglio’s actions and excoriated the town supervisor, who she said “stonewalled and polluted this hearing from the get-go.” She accused Jens-Smith of having an undisclosed agenda against Triple Five. She accused her of intimidating and threatening supporters of the project.

I spent several hours that Sunday back and forth with Kempner about the content of her piece, seeking facts to back up her allegations.

I also questioned her about the propriety of her advocacy for the Luminati and Triple Five deal, since she was the CDA director when the Luminati letter of intent was negotiated and signed last year. She denied that she works for the applicant in any capacity or that she has been offered future employment by the applicant.

Kempner, of Quogue, is a lawyer and a licensed real estate broker.

I referred her to the “revolving door” provisions of the town ethics code, which Kempner said were not in play because she has not been employed by the town for more than six months. The code prohibits a former employee from appearing before a town agency on behalf of a client for a period of six months after their town employment ends.

I pointed out that the code also states, in pertinent part, “No former Town officer or employee shall, at any time, appear before any Town agency, or perform any work, whether paid or unpaid, for any person, in connection with any particular matter on which the Town officer or employee personally participated in and substantially worked on during the period of his or her employment with the Town or which was under his or her active consideration.”

Kempner argued that this provision did not apply to her because, she says, she was not directly involved in negotiations with Luminati. The LOI negotiations were conducted by the former supervisor, she said. So in her position as CDA director, Kempner argued, she was not an employee who “personally participated in and substantially worked on” the Luminati deal. In my mind, that’s a stretch. The question should be put to the town’s board of ethics.

Kempner held the Riverhead CDA job for nearly 10 years until last May, when she left the CDA to take a job with Stony Brook University as director of its business incubator in Calverton. She left the incubator job in February for a position as deputy supervisor of housing and human services in the Town of Brookhaven.

She said she is advocating for this deal because she deeply cares about the town and the future of the enterprise park, because it affects the whole region and the economy for years to come. She said she owns property in the Town of Riverhead, is a taxpayer here, and as a parent is concerned about her children’s future. (She later asked to withdraw the op-ed.)

I’m all for civic involvement, but Kempner’s activities where this land deal is concerned seem out of the ordinary.

There’s also the fact that Kempner and Giglio are good friends.

Indeed, Giglio disclosed yesterday that Kempner went with her to NYC on March 12 to meet with Triple Five. Neither the councilwoman nor the former CDA director previously disclosed that to me during multiple interviews, emails and text messages about the deal in general and the meeting in particular. That disclosure also seemed to take the supervisor and town board by surprise yesterday.

When Jens-Smith asked why Kempner accompanied her to that meeting, Giglio said Kempner is her friend and a lawyer.

Oh, what a tangled web.

I’m not sure what to make of some of this. But Giglio, unwittingly or otherwise, has by her actions compromised the integrity of the hearing process and tainted its outcome.

Consider that, at the second Q&E session, Nader Ghermezian offered the town $2.5 million for park improvements — if the town board votes unanimously to approve the land deal. Yesterday Giglio also admitted to discussing the need for park improvements, saying she asked him what the “community benefit” would be for his proposal. She said she told him the project was next to a park and said Triple Five was already aware of a work session discussion on March 8 about the expense of such improvements and the town’s lack of funds.

Pay to play much?

Giglio has herself caught up in a tangled web, indeed — a web she spun herself. And it will have real consequences for the town no matter what the board decides on this application. Poor choices have consequences and poor choices by public officials have big consequences. She should recuse herself from all further proceedings and the eventual vote. 

Finally, the town must act to revise its code of ethics to establish standards of ethical behavior by officials and employees while hearings on applications are pending. We cannot afford to allow “gray areas” of ethical conduct when it comes to matters of such consequence.

By Denise Civiletti

Read more: https://riverheadlocal.com/2018/04/06/a-public-officials-poor-choice-has-real-consequences-for-all-of-us/