ETHICS COMPLAINT AGAINST DEPUTY COUNTY ATTORNEY ROBERT FITZSIMMONS
Columbia County Board of Ethics
4 January 2010
Ladies and Gentlemen,
Please be advised that this letter constitutes the undersigned’s request that the Ethics Committee of the Board of Supervisors immediately investigate numerous ethics violations committed by Deputy County Attorney Robert Fitzsimmons for his violation of several provisions of Chapter 48 of the Columbia County Code of Ethics Policy (the “County Code”), Article 18 of the NYS General Municipal Law and the ABA Code of Professional Responsibility (“CPR”), which governs the professional principles of lawyers.
Mr. Fitzsimmons is the Deputy County Attorney of Columbia County. As such, his responsibilities include, among other things, legal representation of the Columbia County Board of Elections (“BOE”), a bi-partisan board composed equally of Republicans and Democrats, and the Columbia County Board of Supervisors (“BOS”).
On November 17, 2009, a lawsuit was commenced by Republican County Chair Greg Fingar against the BOE (including both commissioners) and Virginia Martin, individually. Additional parties were subsequently added, including but not limited to Betty Young, present Supervisor/candidate for Supervisor of the Town of Taghkanic, who was added as a plaintiff to the lawsuit with Greg Fingar. Attorney Fitzsimmons was designated to represent and defend defendant BOE in this lawsuit.
Simultaneously, Attorney Fitzsimmons also served on an ongoing basis as town attorney for the Town of Taghkanic, a fact which, at the time of commencement of the lawsuit, he never disclosed to his client, Virginia Martin, Democratic Commissioner of the BOE.
On Monday, December 28, 2009, Betty Young, in her capacity as Town Supervisor, with the assistance of Attorney Fitzsimmons (as detailed in this paragraph), introduced a resolution at the Taghkanic Town Board year-end meeting (a copy is attached), which, in a clear criticism of the job performance by the BOE, directed that “the Board of Supervisors and Board of Elections undertake a review of procedures and requirements, consistent with the New York State election law, to properly analyze and consider applications for voter registration and to inform the public at large as to legal requirements for voter registration within this State.” While Supervisor Young eventually decided not to introduce the resolution (citing that she never liked the resolution and did not understand it), Attorney Fitzsimmons explained the purpose of the resolution to those in attendance. Moreover, the resolution was drafted using Attorney Fitzsimmons’ office computer (see attached).
Section 48-3 of the County Code mandates that “No county employee shall have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest.” Moreover, Section 48-5 of the County Code provides that “Every officer or employee of the County of Columbia…shall not engage in, solicit, negotiate for or promise to accept private employment or render services for private interests when such employment or service creates a substantial conflict with or impairs the proper discharge of his official duties.”
There can be no dispute that as a county employee, Attorney Fitzsimmons violated both of these provisions when he involved himself in the drafting of a resolution criticizing his own client, the BOE, and directing both the Board of Supervisors and the BOE to take certain actions. It is clear that by these actions, he has rendered services for private interests which created a substantial conflict with and impaired the proper discharge of his official duties in the public interest. He knowingly compromised himself and his ability to represent his client, the BOE. The actual degree of his involvement is irrelevant—nothing changes the fact that the resolution was edited on his computer. Attorney Fitzsimmons had a fiduciary duty to recuse himself from this matter immediately. He failed to do so.
EC 5-21 of the CPR states in part that “The obligation of a lawyer to exercise professional judgment solely on behalf of his client requires that he disregard the desires of others that might impair his free judgment…The desires of a third person will seldom adversely affect a lawyer unless that person is in a position to exert strong…political…pressures upon the lawyer. A lawyer subjected to outside pressures should make full disclosure of them to his client; and if he or his client believes that the effectiveness of his representation has been or will be impaired thereby, the lawyer should take proper steps to withdraw from representation of his client.”
Supervisor Young has already stated that she did not author the Taghkanic resolution. Attorney Fitzsimmons has apparently made a similar claim in defense of his involvement. Attorney Fitzsimmons had an obligation to fully disclose this conflict to the BOE (and the Town of Taghkanic) and identify the third person who exerted this political pressure on him. There can be no doubt that the effectiveness of his representation of the BOE was impaired simply by virtue of the language of the Taghkanic resolution which criticized his client, the BOE. Through his representation of the Town of Taghkanic and, by extension, Supervisor Young, Attorney Fitzsimmons was representing both the plaintiff and the defendant in related actions. He had a fiduciary duty as an attorney to take proper steps to disclose this conflict and withdraw from representation of the Town of Taghkanic on this matter.
Section 48-5 of the County Code further requires that “Every officer or employee…shall not disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interest.” By virtue of his legal representation of the BOE, Attorney Fitzsimmons was privy to confidential information involving internal BOE processes and procedures. We believe he used that information in assisting Supervisor Young in preparing the Taghkanic resolution.
With respect to the lawsuit filed by Mr. Fingar on November 17, 2009 and the events leading up to the filing of that lawsuit, Attorney Fitzsimmons was one of the authors of a memorandum of law prepared by the county attorney’s office and submitted to the BOE outlining the legalities of the positions taken by each of the BOE commissioners. In such a memorandum, it is the lawyer’s obligation to fairly present all sides of the argument and the alternatives, regardless of how likely or unlikely they may appear. Attorney Fitzsimmons failed to do this, instead stating his personal opinion, which overwhelmingly favored Commissioner Kline and the Republican Party.
The obligation to present all sides and remain objective is further reinforced by EC 7-8 of the CPR, which provides, “A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations…Advice of a lawyer to his client need not be confined to purely legal considerations. A lawyer should advise his client of the possible effect of each legal alternative. A lawyer should bring to bear upon this decision-making process the fullness of his experience as well as his objective viewpoint.” (emphasis added).
During the ensuing hours of November 17, Attorney Fitzsimmons openly and flagrantly aided, fraternized and strategized with attorneys for the Republican Party and Republican candidates, thus placing the BOE and particularly Commissioner Virginia Martin at a serious professional and political disadvantage. He even went so far as to demand Commissioner Martin’s presence in court in front of Judge Nichols on an ex parte order to show cause for which she had not been served and had no obligation to appear at that time. He later advised that she could be held in contempt of court if she did not immediately follow the judge’s orders, which was completely inaccurate and constituted poor legal advice at the time, since Commissioner Martin had a right to appeal the order of Judge Nichols.
EC 7-9 of the CPR emphatically states that ”in the exercise of his professional judgment on those decisions which are for his determination in the handling of a legal matter, a lawyer should always act in a manner consistent with the best interests of his client.”
It was at this time that Commissioner Martin decided to retain separate counsel because she had lost all confidence in being fairly represented by Attorney Fitzsimmons and his actions clearly were not consistent with her best interest or the best interest of the BOE. He agreed that she should seek separate counsel, the expense of which (if any) would be borne by the County
Finally, it is well-settled principle that “The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.” EC 5-1 of the CPR.
The undersigned believes that Attorney Fitzsimmons has not exercised good professional judgment solely for the benefit of his client, the BOE, To the contrary, he has been overly influenced by members of the Republican Party which has compromised his loyalty and his judgment to the BOE. Among other things, he failed to timely and properly inform Commissioner Martin of his representation of the Town of Taghkanic. It is unfortunate that he has allowed his personal interests and those of other clients (i.e., the Town of Taghkanic) to dilute his loyalty to the BOE. Attorney Fitzsimmons should have recused himself immediately at the commencement of the lawsuit on November 17, 2009. Failing that, he should have recused himself upon receipt of the Taghkanic resolution. His refusal and failure to take either action is a serious breach of his fiduciary duty as an attorney and as a county employee.
Because of the sensitive nature of these matters, we are formally asking for a full ethics investigation into the events that let up to this situation and the conduct of Attorney Fitzsimmons. We also request a more broad inquiry into the propriety of county attorneys representing both county agencies and individual towns and villages.
In addition, due to the pending litigation of these matters, we request an expedited hearing of these charges or at a minimum, a temporary replacement for Mr. Fitzsimmons on any further Columbia County BOE matters until a hearing may be convened and this matter resolved.
Respectfully,
Christopher A. Nolan
Cynthia Hall
Victor Mendolia
Diane Rodriguez
Gary Stoller
Erin Edwards
Audrey Koran
Tony LaSalvia
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