New York State Investigating Sustainable Westchester for Defective Contracts with New Rochelle, Rye

Written By: Robert Cox

ALBANY, NY (May 3, 2024) — The New York State Department of Public Service has opened an inquiry into Sustainable Westchester contracts with two Westchester municipalities: New Rochelle and Rye.

The inquiry began after Talk of the Sound emailed questions about its recent reporting on Sustainable Westchester to the DPS Public Affairs Office.

“Sustainable Westchester did not inform DPS staff regarding problems with its previous New Rochelle contract and Community Choice Aggregation Program established via local legislation,” said a DPS spokesperson. “DPS staff will review the record to determine what enforcement actions, if any, might be required. DPS staff will also examine any issues regarding Rye’s contracts.”

On December 1, 2023, the New Rochelle Board of Ethics determined that between 2015 and 2023, two members of the New Rochelle City Council repeatedly voted on legislation benefiting Sustainable Westchester at a time when they were on the Board of Directors of Sustainable Westchester. Under General Municipal Law 18, as board members, they had an interest in Sustainable Westchester and were required to disclose that interest at each relevant public meeting and recuse themselves. They never once did so.

Over a 7-year period, Mayor Noam Bramson and then Council Member Sara Kaye routinely violated GML 18 and the New Rochelle City Charter. Bramson from 2014 to 2021; Kaye from 2021 to 2023.

The New Rochelle Board of Ethics issued an advisory opinion that concluded all agreements with Sustainable Westchester were null, void, and unenforceable but left it to the City Manager to decide what to do.

READ: Ethics Charges Sustained Against New Rochelle Mayor, Council Member for Illegal Votes to Benefit Sustainable Westchester

The City Manager hired outside counsel to render an opinion. The opinion concurred with the Board of Ethics opinion.

Darius P. Chafziadeh of Harris Beech PLLC, an attorney who represents municipalities, was hired by the City of New Rochelle to analyze whether certain legislation passed by the City of New Rochelle that benefitted Sustainable Westchester was valid when it was voted on and approved by Bramson and/or Kaye while they served on the Sustainable Westchester Board of Directors.

On December 31, 2023, Chafziadeh provided a legal opinion to the City of New Rochelle in which he concluded he generally agreed with the conclusion of the outside counsel to the Board of Ethics that the legislation passed is invalid due to a conflict of interest. He wrote, “although there are a few arguments that could be advanced to support the validity of legislation, we believe that on balance the legislation would be declared invalid if challenged and/or could be declared invalid now by the City.”

READ: Harris Beech Legal Opinion

On February 20, 2024, the City of New Rochelle publicly stated it had allowed its Sustainable Westchester membership to lapse. In a February 7, 2024, confidential memo sent to all council members except Sara Kaye, due to her interest in Sustainable Westchester, Corporation Counsel Dawn Warren stated the membership expired on December 31, 2023.

Warren stated that all previous agreements had expired save one — the Community Choice Aggregation Agreement — and so the Council had two options: (1) ratify the CCA and continue services with the CCA until the contract expires on October 31, 2024; (2) end the CCA and, if Council so desires, issue a new RFP for program administrative services.

READ: New Rochelle Corporation Counsel Advisory Letter to New Rochelle City Council

On February 20, 2024, the New Rochelle City Council voted to extend the CCA until the end of the contract, October 31, 2024.

There are major problems with the City Council vote on the Community Choice Aggregation Agreement on February 20, 2024.

First, although Council member Kaye recused herself and did not vote on the CCA agreement, New Rochelle Mayor Yadira Ramos-Herbert did vote to adopt the legislation despite her own undisclosed interest in Sustainable Westchester rendering that legislation null, void and unenforceable.

READ: New Rochelle Mayor Facing Ethics Charges for Illegal Vote on Sustainable Westchester Contract

That council vote, and the ethics investigation that followed, set off a chain of events that led to an effort by Bramson, Ramos-Herbert and others to fire City Manager Kathleen Gill in order to interfere with the ethics investigation. We have called on the Westchester County District Attorney’s Office to conduct a criminal investigation into these events.

READ: Why Noam Bramson Took Out Kathleen Gill as New Rochelle City Manager

Second, the enabling legislation for the CCA, adopted with the illegal votes of Mayor Noam Bramson in 2015 and Council member Sara Kaye in 2022, is null, void and unenforceable The amendments to the New Rochelle City Code in 2015 and 2022 were illegal and should have come off the books.

They remain:

Chapter 131 Community Choice Aggregation Energy Program (HISTORY: Adopted by the Council of the City of New Rochelle 9-16-2015 by Ord. No. 176-2015; amended in its entirety 7-19-2022 by L.L. No. 3-2022.)

If the enabling legislation falls, the application to the Department of Public Service for the City New Rochelle to join the Sustainable Westchester Community Choice Aggregation Program falls with it (precisely what DPS is now investigating). Further, the New Rochelle City Council cannot authorize a new CCA contract based on a law previously declared null, void and unenforceable.

Under the legal doctrine known as “fruit of the poisonous tree”, any subsequent CCA between the City of New Rochelle and Sustainable Westchester predicated on Chapter 74 Community Choice Aggregation (Energy) Program is also null, void, and unenforceable.

Resolution 2024-44 Proposed Electric Service Agreement With Sustainable Westchester is a house of cards built on a nihility. Any Electric Service Agreement with Sustainable Westchester executed by the City Manager after February 20, 2024, to continue services through the period ending October 31, 2024, is as null, void and enforceable as the rest of the agreements with Sustainable Westchester.

READ: City of New Rochelle entry to Sustainable Westchester CCA.

DPS explanation: In 2015, when the City of New Rochelle initially joined the CCA, it was as part of the pilot program, which had different requirements than when the City of Rye joined in 2018. While no similar filing is available from 2015, the Commission subsequently adopted requirements for filing Implementation Plans, which include all of the same information, except the Local Law, which is only required for the initial approval to join. The approved Sustainable Westchester Implementation Plan for the current contract includes details for all participating municipalities, including the City of New Rochelle. New Rochelle is part of the Sustainable Westchester’s Appendix A ConEd aggregation. Below is a link to the Appendix A implementation plan, Appendix A notification letters, and subsequent Staff approval for both. New Rochelle is about a third of the way down in the group.

We asked the DPS about the implications for a DPS-approved CCA application when the enabling legislation submitted with the application is subsequently deemed null, void and unenforceable.

Based on our inquiries, DPS announced Thursday a review of the Sustainable Westchester Community Choice Aggregation contracts with both New Rochelle and Rye.

At issue is whether DPS would nullify its 2015 approval of the New Rochelle CCA and its 2018 approval of the Rye CCA if it determined the enabling legislation submitted by Sustainable Westchester was invalid because illegal votes were cast when the respective city councils adopted the enabling legislation.

In Rye, the City has so far refused to initiate an ethics investigation based on our reporting that, like Bramson and Kaye in New Rochelle, Council member Sara Goddard routinely violated GML 18, and the Rye City Charter.

READ: Rye City Council Member Violated New York Conflict of Interest Laws to Advance Green Agenda

Unlike New Rochelle, Rye does not allow civilians to file ethics complaints.

“The City has a Board of Ethics, but the Board’s jurisdiction is limited to written requests from ‘officers or employees’ of the City per Section 15-13B of the City Code,” said City Manager Greg Usry. “A member of the public cannot file a complaint to the Board of Ethics.”

We asked Usry, along with Rye Mayor Josh Cohn and Council Member Sara Goddard, if they would be willing to file an ethics complaint drafted by Robert Cox. They declined to respond to our requests.

NOTE: if any officers or employees of the City of Rye are willing to submit the draft ethics complaint, a copy is linked here:

READ: Ethics Complaint – Council Member Sara Goddard (DRAFT)

The situation with Goddard in Rye is analogous to the situation with Bramson in New Rochelle. Both are founding members of the Sustainable Westchester Board of Directors. Both routinely violated General Municipal Law 18 and their city’s charter.

Unlike Bramson however, Sara Goddard did not list the Sustainable Westchester Board of Directors on any of her conflict of interest forms.

When we received copies of Goddard’s conflict of interest forms last week, one was missing.

We asked for a clarification on the missing 2021 conflict of interest form on April 25, 2024.

On May 2, 2024, the Rye City Clerk sent us a copy of Sara Goddard’s 2021 Conflict of Interest form. Goddard failed to file a Conflict of Interest form in 2021. She filed on Wednesday.

Once again, she does not list the Sustainable Westchester Board of Directors on her Conflict of Interest form.

The actions of Sara Goddard raise grave questions of whether she may have knowingly and deliberately violated the Rye City Charter, the Rye Code of Ethics, New York State law, in particular Article 18 of the General Municipal Law, and/or other applicable laws, or policies, or aspects of the above by using her elected office to discuss, promote, advocate for or otherwise bring into being contracts with or involving Sustainable Westchester while she had a prohibited interest in Sustainable Westchester and failed to disclose that prohibited interest to her City Council colleagues and the public in public meetings and enter that disclosure into the official record of its proceedings at times when such contracts were discussed or voted on, failing to abstain from the discussion or vote on a matter involving Sustainable Westchester; failing to state the reason for recusing herself from such discussions or abstaining from such votes; failing to recuse herself from such discussions; and, failing to abstain from such votes.

In short, she discussed and voted on matters and contracts involving an organization in which she had a prohibited interest when she should not have done so and by so doing deceived the public and may have created significant risk and hardship for other Council members and administration employees by rendering contracts with or involving Sustainable Westchester null, void and wholly unenforceable.

These conclusions are based upon documented and readily available public records. The violations are clear-cut. Sara Goddard discussed and voted to authorize contracts with or involving Sustainable Westchester while she was simultaneously on the Board of Directors of Sustainable Westchester, which is defined under the law as a prohibited interest.

The implications of Goddard’s conduct in Rye are the same as New Rochelle.

As a result of her vote on November 7, 2018, the Rye City Code was amended in violation of GML 18: Chapter 74 Community Choice Aggregation (Energy) Program (Adopted by the Council of the City of Rye 11-7-2018 by L.L. No. 6-2018). This section of the Rye City Code is null, void, and unenforceable.

As this section of the Rye City Code is the product of the enabling legislation sent to the New York State Public Service Commission, based on which the PSC approved the City of Rye to participate in the Sustainable Westchester Community Choice Aggregation Program, the application was defective and is likewise null, void, and unenforceable.

READ: City of Rye entry to Sustainable Westchester CCA (November 9, 2018)

Under the legal doctrine cited above, any subsequent Agreement between the City of Rye and Sustainable Westchester predicated on Chapter 74 Community Choice Aggregation (Energy) Program is also null, void, and unenforceable.

If the enabling legislation falls, the application to the Department of Public Service for the City Rye to join the Sustainable Westchester Community Choice Aggregation Program falls with it (precisely what DPS is now investigating). As was the case in New Rochelle, the Rye City Council cannot simply try a quick fix by authorizing a new CCA contract based on a law previously declared null, void and unenforceable.


If you are a Sustainable Westchester customer concerned about the ethical and legal conduct of those associated with Sustainable Westchester, you will want to consider opting-out: How to Opt-Out of Sustainable Westchester — and save big money