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Morristown considers buying sand from Town Council member; ethics expert says it’s illegal

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MORRISTOWN — Town Councilor David W. Stout III wants to supply the town with sand, a move that town officials say is legal but an ethics expert says is in violation of the state’s ethics code.

The town is soliciting bids for a contract to deliver screened sand for use on its roads during the winter.

Highway Supervisor Michael L. Bogart said Mr. Stout believed he could supply the town with sand from his Stout’s Ready Mix business more cheaply than Cooke Sand and Gravel, a Gouverneur-based company with which the town currently contracts.

“He is telling me that he could sell it cheaper,” Mr. Bogart said at Tuesday’s board meeting, recommending the town have an open bid to allow Mr. Stout to get involved.

Mr. Stout said he would bid for the Morristown contract “as long as I can do it legally.”

Mr. Stout’s business has contracts with the towns of Hammond and Oswegatchie and the city of Ogdensburg.

Mr. Bogart said the town receives winter sand at $6.75 per ton and uses up to 6,000 tons in an average winter.

Town Supervisor Frank L. Putman said that as long as Mr. Stout does not participate in any conversations about the contract, he believes it would be appropriate for Mr. Stout to bid on the project.

“He would recuse himself completely from any deliberation or any comments or voting,” Mr. Putman said.

Mr. Stout was not present at Tuesday’s meeting, where the Town Council voted to open the bidding process.

“I was told we could entertain a bid from (Mr. Stout) if he recused himself,” Mr. Putman said. He did not reveal who advised him regarding the legality of the situation.

But Steven G. Leventhal, co-chairman of the state Bar Association, Municipal Law Section, said that if the town contracted with Mr. Stout, it would be in violation of state law.

Mr. Leventhal, Roslyn, has chaired the Nassau County Board of Ethics and has written and lectured extensively on ethics rules for municipal officials.

Regardless of whether Mr. Stout recuses himself from conversations about the contracts, Mr. Leventhal said, “the town may not enter into a contract with a company owned by a member of the town board.”

If the town approves a contract with Mr. Stout, Mr. Leventhal said, the contract would be void and the violation could be punishable as a misdemeanor offense.

“We’re not going to break the law,” Mr. Putman said.

Mr. Putman said the town wants to find a cheaper source for sand, regardless of where it comes from. “We’re exploring if there is a cheaper vendor,” he said. “We would be putting this out to bid regardless.”

But Mr. Putman said that if the town finds that contracting with Mr. Stout is illegal, as Mr. Leventhal claims, it will be forced to reject any bid by Mr. Stout.

Mr. Stout’s term in office is up at the end of the year, and he is not seeking re-election. Mr. Putman said the town can’t wait until Mr. Stout is no longer on the council to begin stocking up on sand for the roads.

The town is expected to formally open up the bidding process this week and approve a contract in early September.

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