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Apparent Misuse of Government Ethics Authority to Win a Vote
Thursday, January 9th, 2014
Robert Wechsler
In a
New York Times column today, Michael Powell has unearthed an
ugly-looking government ethics situation in New Jersey involving apparent misuse of government ethics authority to win a vote.
The fact situation is fairly typical. What is not typical is the way it has been handled. A gas company is seeking permission to put a pipeline through the Jersey Pine Barrens, a huge nature reserve that is overseen by the Pinelands Commission, an independent agency whose members are selected by the governor, by various local officials, and by the U.S. Department of the Interior. The members include environmental activists as well as real estate professionals.
The current governor's administration has arranged a deal by which the gas company will pay $8 million to the commission, and the commission's staff support the deal. But the four preceding governors have written a letter opposing the pipeline, and it looks like the commission vote, scheduled for tomorrow, will be close.
One of the commission members is, among other things, the president of the board of the nonprofit Eastern Environmental Law Center, which called for an additional public meeting on the pipeline. According to the article, on December 6 a deputy attorney general called the commission member to tell him that he had a conflict of interest based on the center's call for an additional meeting. The commission member said that he did not believe this constituted a conflict. The deputy AG said that the commission member could appeal to the commission's ethics officer. Every state agency in NJ has an ethics officer, as part of the state ethics program, which also has a state EC.
It is unusual for the attorney general's office, at least in a state with a good ethics program, like New Jersey's, to take the initiative like this in a minor ethics case (the letter had been written only the day before). It is also unusual for anyone who knows about government ethics to consider a commission member's political involvement to constitute a conflict. It's clear that this commission member was appointed because of his views and affiliations, not in spite of them. He has been an environmental activist his entire adult life, and this was why he was considered by his appointing authority to be an appropriate member of a body protecting the state's largest nature reserve. In any event, the call for an additional meeting is not even the taking of a position on the matter.
While working on an appeal, the commission member received a call from the agency's ethics officer, saying, "on orders of the governor’s office, I went to the State Ethics Commission and they have ordered you to recuse yourself."
There are three serious problems here, (1) the involvement of the governor's office, which has no government ethics role, in a matter that had already been dealt with by the attorney general's office, (2) the ethics officer's failure to consult with the commission member before going to the EC (after all, the commission member may have already decided to withdraw rather than appeal, making EC involvement unnecessary), and (3) the fact that, as discussed above, it is hard to believe that any EC would ask a commission member to withdraw under these circumstances.
It gets worse. The columnist called the EC, and was told by the executive director that it had made no such determination.
Apparent misuse of ethics authority, as here, can have other repercussions. Due to the AG's order, a request for a determination was filed with the EC regarding two other members of the Pinelands Commission, who have investments in energy companies and, therefore, may be considered to be biased in favor of the gas company seeking permission for the pipeline. This may constitute an appearance of impropriety, but it is very unlikely to be sufficient to require withdrawal, since there is no direct interest in the company involved. It is unlikely that the request would have been filed had an environmentalist not been forced to withdraw.
If the facts as stated in the column are true, this is one of the most serious attempts I have seen to misuse a questionable ethics issue to affect a vote. It is unfortunately not uncommon for board members to raise specious conflict issues against opponents in order to win a vote. But it is highly unusual for a governor's office, the AG's office, and an agency ethics officer to be involved in what appears to be a conspiracy to fraudulently win a vote on a controversial matter.
The vote should be put off until an investigation is done, and anyone involved in such a conspiracy, directly or indirectly, should resign. In addition, there should be an independent consideration of the role of the attorney general's office in government ethics (besides being abused, the AG's involvement in ethics matters appears to be totally unnecessary and to lead to inconsistent interpretation of the state ethics code) and of the selection process for agency ethics officers.
Robert Wechsler
Director of Research-Retired, City Ethics
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The fact situation is fairly typical. What is not typical is the way it has been handled. A gas company is seeking permission to put a pipeline through the Jersey Pine Barrens, a huge nature reserve that is overseen by the Pinelands Commission, an independent agency whose members are selected by the governor, by various local officials, and by the U.S. Department of the Interior. The members include environmental activists as well as real estate professionals.
The current governor's administration has arranged a deal by which the gas company will pay $8 million to the commission, and the commission's staff support the deal. But the four preceding governors have written a letter opposing the pipeline, and it looks like the commission vote, scheduled for tomorrow, will be close.
One of the commission members is, among other things, the president of the board of the nonprofit Eastern Environmental Law Center, which called for an additional public meeting on the pipeline. According to the article, on December 6 a deputy attorney general called the commission member to tell him that he had a conflict of interest based on the center's call for an additional meeting. The commission member said that he did not believe this constituted a conflict. The deputy AG said that the commission member could appeal to the commission's ethics officer. Every state agency in NJ has an ethics officer, as part of the state ethics program, which also has a state EC.
It is unusual for the attorney general's office, at least in a state with a good ethics program, like New Jersey's, to take the initiative like this in a minor ethics case (the letter had been written only the day before). It is also unusual for anyone who knows about government ethics to consider a commission member's political involvement to constitute a conflict. It's clear that this commission member was appointed because of his views and affiliations, not in spite of them. He has been an environmental activist his entire adult life, and this was why he was considered by his appointing authority to be an appropriate member of a body protecting the state's largest nature reserve. In any event, the call for an additional meeting is not even the taking of a position on the matter.
While working on an appeal, the commission member received a call from the agency's ethics officer, saying, "on orders of the governor’s office, I went to the State Ethics Commission and they have ordered you to recuse yourself."
There are three serious problems here, (1) the involvement of the governor's office, which has no government ethics role, in a matter that had already been dealt with by the attorney general's office, (2) the ethics officer's failure to consult with the commission member before going to the EC (after all, the commission member may have already decided to withdraw rather than appeal, making EC involvement unnecessary), and (3) the fact that, as discussed above, it is hard to believe that any EC would ask a commission member to withdraw under these circumstances.
It gets worse. The columnist called the EC, and was told by the executive director that it had made no such determination.
Apparent misuse of ethics authority, as here, can have other repercussions. Due to the AG's order, a request for a determination was filed with the EC regarding two other members of the Pinelands Commission, who have investments in energy companies and, therefore, may be considered to be biased in favor of the gas company seeking permission for the pipeline. This may constitute an appearance of impropriety, but it is very unlikely to be sufficient to require withdrawal, since there is no direct interest in the company involved. It is unlikely that the request would have been filed had an environmentalist not been forced to withdraw.
If the facts as stated in the column are true, this is one of the most serious attempts I have seen to misuse a questionable ethics issue to affect a vote. It is unfortunately not uncommon for board members to raise specious conflict issues against opponents in order to win a vote. But it is highly unusual for a governor's office, the AG's office, and an agency ethics officer to be involved in what appears to be a conspiracy to fraudulently win a vote on a controversial matter.
The vote should be put off until an investigation is done, and anyone involved in such a conspiracy, directly or indirectly, should resign. In addition, there should be an independent consideration of the role of the attorney general's office in government ethics (besides being abused, the AG's involvement in ethics matters appears to be totally unnecessary and to lead to inconsistent interpretation of the state ethics code) and of the selection process for agency ethics officers.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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