Since publishing Breathing’s March 20, 2010 coverage of the Town of Delaware’s Board meeting, I’ve been fielding questions about local public officials’ potential conflicts of interests. Essentially, residents on both sides of the River are worried that some local public officials are either blocking or supporting local zoning changes and/or Board resolutions because those officials have leased, or are considering leasing, their own gas mineral rights.
Residents and taxpayers who have raised the issue of conflicts of interest believe they are being disenfranchised by representatives who are supporting or opposing public policy for the benefit of themselves and drilling interests rather than in protection of the public’s health and welfare.
As a result, I’ve asked two attorneys whether or not New York State’s county, town, zoning and planning board members who have leased or are considering leasing their gas mineral rights should recuse themselves from not only voting on drilling issues but from participating in their Boards’ discussions of gas drilling issues. In response, both attorneys strongly recommended that the public should attend those local board meetings and ask each board member, on the record, to clarify the leased status of their and their family’s real property holdings.
In an April 2, 2008 press release, the Franklin County, NY District Attorney made an announcement which may apply to our local public officials who have signed gas leases:
“Over the past three months the Franklin County District Attorney’s Office has been examining allegations of certain improprieties including self-dealing, conflicts of interest and violations of statutes on the part of various local elected officials in Franklin County.
The recently disclosed unethical conduct by our state’s highest elected official has heightened the need for a closer review of all available ethical safeguards in order to reestablish and maintain the Public’s confidence in our elected officials.
This week, copies of General Municipal Law, Chapter 24, Article 18, Section 805-a and 806, are being sent to all Town, Village, School District and other regulatory boards in Franklin County in an effort to fully apprise elected officials of the prohibited conflicts of interest of Municipal Officers and their employees. Each governing body is also being urged to adopt and/or update their respective Code of Ethics and to consider working with the Franklin County Legislature to adopt a standard code throughout the County.
Our investigation has revealed several contracts, easements, lease option agreements, cooperation memoranda and other types of documents which disclose relationships existing between elected officials and certain third parties in Franklin County (as well as other elected officials in other Counties) which, when allegedly coupled with certain decision making and board action, may be in violation of General Municipal Law (GML) 805-a(1)(c) and (1)(d). If such violations have occurred, these public officials may also be in violation of Penal Law Section 195.00, Official Misconduct and/or Penal Law Section 200, (Bribery Involving Public Servants and related offenses). (Bold added for emphasis.)
We are presently urging all elected officials to examine any and all employment relationships, contracts, contractual arraignments, agreements, leases, easements, payments, agreements for future services, fees, compensation, financial arraignments and other related matters which would fall under the prohibitions of GML 805-a(1)(c) and (1)(d) and to consider as required by law, full disclosure to the public and recusal from voting or participation in legislative decisions in any events where a public official has or may have a financial interest. (1992 N.Y. Op. (Inf.) Att’y Gen. 31) (Bold added for emphasis.)
Through these proactive steps and full compliance with the law, we can attempt to restore and maintain the public’s confidence in our elected officials. The New York State Attorney General’s Office, in the informal opinion cited above specifically stated, “even the appearance of impropriety must be avoided in order to maintain public confidence in government.”
According to New York State’s Commission on Public Integrity: “Lobbying” or “Lobbying activities” on the local level are defined as any attempt to influence the passage or defeat of any local law, ordinance, resolution or regulation by any municipality or subdivision thereof or adoption or rejection of any rule, regulation, or resolution having the force and effect of local law, ordinance, resolution or regulation or any rate making proceeding by any municipality or subdivision thereof.”
Breathing Note: Commonsense dictates that if a member — or the family of a member — of one of our local county, town, zoning and/or planning boards has leased mineral rights to a drilling company, that member will benefit from either “the passage or defeat of any local law, ordinance, resolution…” which also benefits gas drilling interests. Further, commonsense dictates that a member who has leased his or her property to gas drilling interests and then supports or opposes local policy for the benefit of gas drilling interests may be, effectively or apparently, functioning as a lobbyist for those drilling interests rather than as an advocate for the public’s interest.
Sections 805-a and 806 of New York State’s General Municipal Law are the most usually-cited statutes governing official conflicts of interest. (Section 806 explains the parameters of local codes of ethics and can be read in full here.)
Section 805-a reads:
- 1. No municipal officer or employee shall:
- a. directly or indirectly, solicit any gift, or accept or receive any gift having a value of seventy-five dollars or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part;
- b. disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interests;
- c. receive, or enter into any agreement, express or implied, for compensation for services to be rendered in relation to any matter before any municipal agency of which he is an officer, member or employee or of any municipal agency over which he has jurisdiction or to which he has the power to appoint any member, officer or employee; or
- d. receive, or enter into any agreement, express or implied, for compensation for services to be rendered in relation to any matter before any agency of his municipality, whereby his compensation is to be dependent or contingent upon any action by such agency with respect to such matter, provided that this paragraph shall not prohibit the fixing at any time of fees based upon the reasonable value of the services rendered.
- 2. In addition to any penalty contained in any other provision of law, any person who shall knowingly and intentionally violate this section may be fined, suspended or removed from office or employment in the manner provided by law.
Over the years, Attorney Generals in New York State have issued opinions which may be salient to local concerns that public officials with gas drilling conflicts are not recusing themselves from either voting or discussing drilling issues that come before them. Several of those Attorney General Opinions are included below:
- In Opinion 2002-9 re Conflict of Interests :
“…if a member of a village’s Board of Trustees, who owns property within the Business Improvement District of the village, has a substantial direct personal interest in the outcome of the Board of Trustees’ vote on the Business Improvement District’s annual budget, recusal from participating in the Board of Trustees’ deliberations and voting on the Business Improvement District’s annual budget is the appropriate course of action.”
“As a general matter, recusal would be required if the facts and circumstances suggest that the subject trustee has a substantial, personal interest in the outcome of the BID budget vote. Even the appearance of such an interest would require recusal, in order to maintain public confidence in government.” (Breathing Note: If a public official’s property has been leased and will be affected by proposed legislation or changes in legislation, would the same recusal requirement exist?) (Bold added for emphasis.)
- In Opinion 96-17 re: Section 806:
“Public officers have responsibility to exercise their official duties solely in the public interest. 1985 Op Atty Gen (Inf) 101. They should avoid circumstances which compromise their ability to make impartial judgments and must avoid the appearance of impropriety in order to maintain public confidence in government.”
- In Opinion 96-27 re: Section 806:
“Public officials should not, however, accept positions or become involved in outside activities which conflict with their official duties. Every local government is required to promulgate a code of ethics providing standards for officers and employees with respect to disclosure of interest in legislation before the local governing body, holding of investments in conflict with official duties….”
- In Opinion 99-42 re Section 806:
“A member of a board of assessment review who owns property before the board for review is obligated to recuse himself from participating in board proceedings with respect to that property to preserve the validity of action taken by the board and maintain public confidence in the integrity of government.” (Breathing Note: If a public official’s property has been leased and will be affected by proposed legislation or changes in legislation, would the same recusal requirement exist?)
- In Opinion 95-2 re: members with conflict of interests recusing themselves from all Board deliberations “with respect to that matter or applications”:
“We have found that members of local bodies, including planning boards, with conflicts of interests in a particular application or matter before the body, should recuse themselves from taking any actions with respect to that matter or application. Op Atty Gen (Inf) No. 9-38; 1988 Op Atty Gen (Inf) 12, 124; 1988 Op Atty Gen (Inf) 115, 117. We have stated that members with conflicts of interests must recuse themselves from participating in any deliberations or votes concerning the application creating the conflict. Op Atty Gen (Inf) No. 90-38. The board member’s participation in deliberations has the potential to influence other board members who will exercise a vote with respect to the matter in question. Further, we believe that a board member with a conflict of interests should not sit with his or her fellow board members during the deliberations and action regarding the matter. The mere presence of the board member holds the potential of influencing fellow board members and additionally, having declared a conflict of interests, there would reasonably be an appearance of impropriety in the eyes of the public should the member sit on the board.”
“Thus, it is our view that once a board member has declared that he or she has a conflict of interests in a particular matter before the board, that the board member should recuse him or herself from any deliberations or voting with respect to that matter by absenting himself from the body during the time that the matter is before it.”
- In Opinion 97-5:
“A member of the city council…if the interests of his or her employer are affected by matters before the council, recusal is that appropriate course of action.” (Breathing Note: If a member’s income is impacted by his Board’s action, how can it matter whether that income derives from an employer or a gas lease?)
As always, Breathing articles are easily copied and pasted. It’s good to get the research credit but it’s even more important that the work be used by concerned people for good purpose.