Buscetto Counsel Challenges Probable Cause Finding

The Board of Ethics will hold a set of hearings later this month to make a finding on Police Chief Margaret Ackley’s claims against City Councilor Michael Buscetto III.

The board met Wednesday night with the two parties, as well as their respective legal counsel, to discuss the layout of the hearings. The meeting also addressed concerns brought by Buscetto through his lawyer, Kelly Reardon, over the legitimacy of the board’s September in Ackley’s complaint.

On Aug. 24, Ackley publicly accused Buscetto, then the Democratic candidate for mayor and now a write-in candidate for the office, of . According to correspondence between Ackley’s attorney—Shelley Graves—and the City Council, Ackley’s concerns included “issues and happenings that are tantamount to a hostile working environment” as well as incidents and issues that “provide a legal basis for the bringing of a lawsuit by Chief Ackley against the city for gender discrimination and harassment.” The complaint also charges that Buscetto should have recused himself during the City Council’s executive session discussions on the matter.

Buscetto has denied the accusations as well as Ackley’s claim that Buscetto’s conduct led to her decision to retire in January. He has criticized the terms of Ackley’s retirement—which include having the city pay half of her health insurance through age 65 and a pension increase in exchange for a forfeiture of compensation time—as a bad deal for the city. He also said retirement negotiations should not have taken place without the knowledge of the City Council.

On Sept. 29, the board found probable cause to further investigate Ackley’s claims that Buscetto twice violated the standards of conduct section and committed one violation each of the conflict of interest section and the confidential information section of the Code of Ethics. Board counsel Edward Cassella said the board received a letter from Buscetto on Monday expressing concerns over whether the code provides proper channels for a respondent in a complaint to call witnesses; he said the letter declares that the board “failed to conduct a full, proper, and impartial investigation.”

Reardon said Buscetto had not been given proper notice of the meetings by the board regarding probable cause. She also said these meetings were violating the code if they were held in public rather than executive session.

Board chairman K. Robert Lewis said Ackley was subpoenaed to the hearings because the burden of proof rests on a complainant in ethical matters, and that Buscetto had asked that the proceedings be public. Lewis said public notice was given that the meetings were taking place on Sept. 23 and 29. He said the board had received a letter from Buscetto, in which he denied disclosing confidential information or having a personal or financial interest in discussions regarding Ackley’s complaint.

“Mr. Buscetto’s written response was entered and considered and weighed in that,” said Lewis.

Other members of the board agreed. Casella said the code does not state that a respondent must be notified of meetings. He said Buscetto knew he was under investigation and was able to offer perspective with his written response.

“From a due process perspective, I would submit that that is enough notice,” he said.

“We were at the point where we had to move forward,” said board member Dennis Downing. “I thought we had probable cause…We need to hear more.

Reardon said at the end of the meeting that she is reserving the right to appeal the finding of probable cause to the and that such an action would halt further action by the Board of Ethics until the court makes a finding. Lewis said he thinks the proper channel for such an appeal would be the state ethics board.

Lewis said Reardon has asked him, Downing, and board members Brian Giesing and Eunice Waller to recuse themselves from the hearings due to political issues. He said he and Downing have declined to do so while Giesing—a Republican candidate for City Council—has agreed to do so to avoid the appearance of a conflict of interest. Waller was not present and has not publicly made a decision. Lewis said the board would not have a quorum if all four agreed to recuse themselves, as five of the seven board members must agree that unethical behavior has taken place to reach that finding.

The first hearing on Ackley’s complaint will take place at 5 p.m. on Nov. 16 at . These hearings will include opening statements, testimony by the witnesses, questions from the board and legal counsel, presentations by Ackley and Buscetto, and other discussions before the board makes a finding on the complaint. Additional time has been reserved at 5 p.m. on Nov. 30 and 6 p.m. on Dec. 7 if further hearings are necessary.