Posted By: Professor Patricia E. Salkin
Amid allegations of corruption, conflicts of interest, self-dealing and lack of transparency in the siting of wind turbines throughout Upstate New York, Attorney General Andrew Cuomo has unveiled a new voluntary code of ethics for wind developers with far-reaching impacts on the conduct of municipal officials. By setting his sights on the industry actors, as opposed to the municipal officials, the Attorney General may have scored a big win in finding an opening to regulate the activities of local government officials who would not have otherwise been subject to the jurisdiction of the Attorney General in regard to these issues.
Wind, a source of free green energy, can be captured through the use of high-standing turbines in areas rich with wind resources and converted to electricity for use by individual, municipal and private sector power grids. So, what’s the problem? It’s a classic land use issue plain and simple – some people think that the turbines are ugly, that they will devalue property, that they are dangerous (e.g., if they should fall, if ice is thrown from the blades, etc.), that they have harmful effects on the environment because birds and bats may get caught in the turbine rotors, and that they create nuisance-like situations with light flicker and with noise. These community members are finding themselves pitted against not only those who support the turbines because of the promise of green energy, but they are fighting their neighbors, a number of whom are receiving financial remuneration from the wind companies for easements to allow access for the construction of the turbines and for lease options to host the turbines on their land. The tension had been ratcheted up by the interests of some local government officials who both have a role in the municipal approval process and who have been offered easement and lease deals by the wind companies.
Municipal ethics 101 – of course municipal officers who have a financial interest in the outcome of a decision should both disclose and recuse themselves from further discussion on such applications. Further, where immediate relatives of municipal officials have such financial interests (usually those residing in the same household and/or dependents for purposes of income taxes), this too should be disclosed and is disqualifying. Sometimes municipal officials find that the issues are not so cut-and-dry when there is no present easement or lease, only the possibility of one that may or may not be realized. When confronted with questions from the public, too often municipal officials get defensive and refuse to answer questions. These scenarios and others led in part, to the production of the Wind Development Code of Ethics.
The Code, which has already been signed by two companies who had been under investigation by the Attorney General and local district attorneys for alleged corruption in their dealings with municipalities, regulates much more than the conduct of wind companies, touching indirectly the world of municipal ethics otherwise regulated by state and local ethics codes and rules. While the signatories to the voluntary Code are the wind development companies, not the municipalities, the Code regulates activities such as gift giving, disclosure, employment, honoraria and confidential information. While a number of these items are generally consistent with modern municipal ethics laws, a two year prohibition on hiring municipal officials (and their relatives) who had anything to do with the wind development application and certain public disclosures that apply not just to municipal officials but to relatives as well, may be the farther reaching than most existing municipal ethics codes. The Code also provides a minimal training requirement for wind company employees (notably not for municipal officials), and establishes a task force to oversee the implementation and enforcement of the Code. The work of the task force is to be funded by the companies who voluntarily agree to adopt the Code.
The bottom line – state attorneys general may use this approach as a template to explore potential involvement in myriad other controversial land use topics such as siting of bog box retail and drilling for natural gas.
The lesson: Municipal Counsel must remain constantly vigilant to remind municipal clients of the ethics rules and regulations that should inform their decision making to most appropriately guide their conduct. Anything less leaves the door open for a new sheriff to ride into town to clean up corruption and abuse.
For other comments/reactions to the Code see: