IN THE MATTER OF NICHOLAS QUENNELL
COIB Case No. 97-60
June 17, 1997
SUMMARY: In Matter of Nicholas Quennell, COIB Case No. 97-60 (1997), a former Art Commission President who inadvertently failed to recuse himself from Commission matters involving his architecture firm was fined $100.
STIPULATION AND DISPOSITION
Respondent Nicholas Quennell states the following:
1. I have been a member of the New York City Art Commission (the "Commission" or the "Art Commission") since 1992. I have served as President of the Art Commission since 1994.
2. On January 10, 1992, the Conflicts of Interest Board issued an Advisory Opinion ("A.O."), No. 92-5, and an Order, No. 16, to me with respect to my appointment to the Art Commission. In addition, on the same date, the Board sent me a letter pursuant to Charter § 2604(e) of the New York City Charter concerning my appointment to the Art Commission.
3. The Board's January 10, 1992 public letter to me stated that I had advised the Board as follows: that the Art Commission reviews and approves works of art and designs for building architecture, landscape architecture and street furniture; alterations and exterior repairs proposed for City-owned property; and the acceptance of works of art offered as gifts to the City; that the Commission does not contract for any art or work and is not involved in the selection or approval of contractors with the City or in the negotiation of their fees; and that its members serve without compensation. The Board's letter recited further that I had advised the Board that I am a landscape architect and a principal of Quennell Rothschild Associates, which then had a number of projects requiring the approval of the Art Commission, none of which involved the Hayden Planetarium; and that I had agreed to recuse myself at such time as the Commission reviews any projects with which my firm is involved. The Board's letter set forth the meaning of such recusal as follows:
We understand such recusal to mean that, as [a] member[] of the Commission, Mr. Quennel[l] ... would not vote on any such projects involving [his] firm [], or be involved, directly or indirectly, in any matter relating to such projects, including, but not limited to, participating in the Commission's discussions, attending meetings with City officials and others and receiving copies of relevant documents.
(January 10, 1992 Board letter at page 2.) In my application for Board advice, I advised the Board further that almost 50% of my local practice involved contracts with City agencies or contracts with private entities that required Art Commission approval.
4. The Board letter went on to explain:
Except as provided in Charter Sections 2604(a)(3) and 2604(e), a public servant whose primary employment is not with the City may not have an ownership interest in or a position with a firm which the public servant knows is engaged in business dealings with the public servant's agency. See Charter Section 2604(a)(1)(a). Such business dealings include any license, permit, grant or benefit which is not ministerial. See Charter Section 2601(8).
Charter Section 2604(a)(3) requires an individual who, before becoming a public servant, has an ownership interest that would otherwise be prohibited under Charter Section 2604, to disclose such ownership interest to the Board and to comply with its order as to whether or not such interest, if maintained, would be in conflict with the public servant's official duties. In making this determination, the Board is required to take into account the nature of such duties, the manner in which the ownership interest may be affected by any action of the City and the appearance of conflict to the public. See Charter § 2604(a)(4).
Pursuant to Charter Section 2604(e), a public servant may hold a position otherwise prohibited under Charter Section 2604 when the Board determines, after receiving the written approval of the public servant's agency head, that the position does not conflict with the purposes and interests of the City.
5. Based upon my representations, the Board determined, pursuant to Charter § 2604(a)(4), as set forth in Order No. 16 accompanying the Board letter, that my ownership interest in Quennell Rothschild Associates did not conflict with my official duties as a member of the Commission, provided that I recuse myself from my firm's business dealings with the Commission. Moreover, based upon my representations and on the approval of Edward A. Ames, then President of the Commission, the Board determined, pursuant to Charter § 2604(e), that my position with my firm did not involve a conflict with the purposes and interests of the City.
6. Board Order No. 16 similarly recited that:
The Board has determined that Mr. Quennell's ownership interest, if maintained, would not be in conflict with the proper discharge of his proposed official duties, having taken into account the nature of such duties, the manner in which his ownership interest in his firm may be affected by an action of the City, the appearance of conflict to the public, and [the City Law Department's counsel's] representation that Mr. Quennell has agreed to recuse himself from any actions by the Commission with respect to any matters before the Commission involving his firm.
The Board therefore ordered that no further Board action was necessary, "provided that, while Mr. Quennell is a member of the Commission, he will take no direct or indirect part in any business dealings which his firm has with the Commission."
7. Advisory Opinion No. 92-5 reiterated the recusal requirements of the Board's letter of the same date:
We understand such recusal to require that he will not vote on any matters which involve his firm's business dealings with the commission, or be otherwise involved, directly or indirectly, in such business dealings. This includes, but is not limited to, participating in the commission's discussions, attending meetings with City officials and others and receiving copies of relevant documents.
A.O. 92-5 at page 3. The Advisory Opinion, at pages 1-2, in a footnote also explained the nature of an "ownership interest" in a firm as defined in Chapter 68 of the New York City Charter as, among other things, an interest held by a public servant, his spouse or unemancipated child, which exceeds five per cent of the firm or an investment of $25,000 (now $29,000, see Board Rule § 1-11, 12 RCNY, Title 53), and any lesser interest when managerial control is exercised, not including any interests in a pension plan, deferred compensation plan or mutual fund. (Charter § 2601(16), (18).) I am a 50% owner of Quennell Rothschild Associates.
8. These three documents from the Board -- the Advisory Opinion, the Order and the Board's letter -- required me to recuse myself from Commission matters in connection with a project involving New York's Hayden Planetarium (the "Planetarium Project"). This is so because my firm, Quennell Rothschild Associates, entered into an agreement with Polshek James Stewart & Partners ("Polshek") in October 1994, to carry out design work as outlined in a formal proposal dated September 15, 1994 (the "Proposal"), covering three tasks for the Planetarium Project:
PROJECT: AMERICAN MUSEUM OF NATURAL HISTORY/HAYDEN PLANETARIUM LANDSCAPE ARCHITECTURAL DESIGN SERVICES
* * * *
SCOPE
Landscape Architectural work for the project includes the following tasks:
Task A. Concept Plan for entire project area: Planetarium roof deck and site (north park)
Task B. Design Development, Construction Document and Construction Phase services for Planetarium Roof deck
and
Task C. Design Development, Construction Document and Construction Phase services for surrounding areas (North Park)
The total fees for this work as projected in the October 1994 Proposal were $170,000 plus extra work (at $125 per hour for my time or my partner's and $50-75 for our staff's time) to be agreed upon and disbursements. Based upon this proposal and a letter dated October 4, 1994 from me to Polshek, the architects proposing to perform work on a $60,000,000 project to redesign and replace the Hayden Planetarium with a more modern structure, my firm did work on the project for several months through the early part of 1995. From the start of this work until December 11, 1995, my firm was paid $11,394.96 in fees and expenses. The Proposal specifically provided that the Art Commission would have to review and approve the work on the Proposal. In addition, the Proposal provided that the Department of Parks and the Landmarks Preservation Commission would have to review and approve the work. During the summer of 1995, a decision was made to separate the work on the surrounding areas of the park, and another firm of landscape architects was selected for this work. As a result, my firm submitted a revised Proposal dated January 21,1996 which covered the reduced scope of our services. This proposal became the basis for a contract between my firm and Polshek, which contract is still in effect. Under the current contract, the expected fees will total $114,000 plus extra work to be agreed upon and disbursements. Under both proposals, extra work included public hearings as follows: "If required we will attend public hearings and provide exhibits and expert testimony in connection with such permits or approvals."
9. I recused myself from all aspects, including meetings, hearings, votes and informal discussions, of the Commission's consideration of the Planetarium Project with one exception. I failed to recuse myself from the vote of the full Commission on December 11, 1995. On that date, I presided over a meeting of the Commission and voted in favor of preliminary approval of the Planetarium Project, including the landscaping design work that was the subject of my first Proposal to Polshek. The Commission voted on December 11, 1995 unanimously in favor of preliminary approval of the Planetarium Project.
10. The "consent agenda" at the December 11, 1995 hearing of the Commission included 24 items on 8 pages. My failure to recuse myself at that hearing occurred in the course of the Commission's policy to proceed when possible by using a "consent agenda" in matters that are not controversial. This policy is aimed at accelerating the review process as follows. The Standing Committee of the full Commission (which normally meets in public once a month on the Wednesday following the Commission's regular public hearing) recommends many of the projects reviewed to be included in the "consent agenda" for formal approval at the next public hearing. The Commission held hearings in the fall of 1995. I was not present at the November 13, 1995 hearing about the Project, at which hearing comments were invited from the public but no member of the public came forward to testify, and there was no objection to the Project at that hearing. As a result of the November 1995 Commission meeting, the Commission, functioning as the Standing Committee, recommended that the Planetarium Project be treated as a consent agenda item and the Project went forward on that basis. I recused myself and took no part in the discussions at the November 1995 meeting of the Commission, which meeting resulted in the placement of the Planetarium Project on the December 11, 1995 consent agenda.
11. In my capacity as President of the Commission, I normally call for a motion to approve the entire consent agenda after asking for any comment from the public. This is what I did on December 11, 1995. I erroneously failed to separate the vote for the Planetarium from the rest of the consent agenda and to identify it clearly as one item from which my vote would be withheld. I am not sure whether I received or read the Commission's agenda for that hearing before the hearing. My vote was not necessary for a quorum at the hearing. There were nine Commissioners present and voting at the December 11, 1995 hearing; six Commissioners ordinarily constitute a quorum. (37 N.Y.C. Charter § 853.)
12. I admit that my conduct in failing to recuse myself at the December 11, 1995 hearing of the Art Commission constituted a conflict of interest in that I was directly ordered by the Board to recuse myself in such matters. I understand that I violated the Board Order No. 16, the terms of Advisory Opinion No. 92-5 and the Board's January 10, 1992 letter and the following City Charter provision:
2604: Prohibited interests and conduct.
a. Prohibited interests in firms engaged in business dealings with the city.
1. Except as provided in paragraph three below,
(a) no public servant shall have an interest in a firm which such public servant knows is engaged in business dealings with the agency served by such public servant ....
Such business dealings include any transaction with the City involving the sale, purchase, rental, disposition or exchange of any goods, services, or property, any license, permit, grant or benefit but not any ministerial matter. A ministerial matter is an act (including the issuance of a license, permit or other permission by the City) which is carried out in a prescribed manner and which does not involve substantial personal discretion. See Charter §§ 2601(8), 2601(15).
13. I also understand that my failure to recuse myself as required in this one instance created the appearance of a conflict of interest in violation of §§ 2604(b)(2) and (b)(3) of the City Charter, which provide:
“2604(b)(2): No public servant shall engage in any business, transaction or private employment, or have any financial or other private interest, direct or indirect, which is in conflict with the proper discharge of his or her official duties.”
“2604(b)(3): No public servant shall use or attempt to use his or her position as a public servant to obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant.”