Is Burke hopelessly corrupt?

June 16, 2015

 

— Calvin Luther Martin, PhD

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The wind hucksters are back.  In Chateaugay, Belmont, and maybe Burke.

Just when it seemed the statewide Wind Energy gig had run its course, it wheezed back to life when Gov. Cuomo unexpectedly threw several hundred million dollars its way.  (My guess is Cuomo did it to appease all the people he pissed off by banning natural gas fracking.)

What’s killing wind energy, nationally, is Congress’s refusal to extend the Production Tax Credit (PTC), the wind companies’ chief source of income — taxpayers’ money.  At the moment, Congressional die-hards have only managed to extend the “wind” PTC retroactively through December 2014.  Their opponents are holding the line.  (It’s a partisan tug-of-war.  Republicans argue that wind energy is little more than corporate welfare.  Democrats say wind energy is an answer to Global Warming, a bogeyman many Republicans consider vastly overstated if not outright bullshit.)

Regardless of which argument you support, without reliable federal subsidies (PTC), there’s no financial future for wind energy.

Congressional Republicans, incidentally, have a point.  Wind energy is intermittent, not “dispatchable,” and requires 24/7 “spinning reserve” power backup from coal, nuclear, natural gas, or hydro.  It’s absurd to imagine wind power as a contender in the nation’s energy mix.

Wind power will go the way of 19th-century sailing vessels.  All 29 sails on this schooner are obsolete for anything but recreational purposes.  This isn’t Politics 101, it’s Physics 101.

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In any event, Cuomo’s generosity brought the Jericho Rise wind project back from the dead — and the Burke Town Board wants some of the action.  To get in on the windfall ($206 million), Burke had to — and just did — pass a wind law permitting turbines in this dairy-farming slice of paradise.

Here’s where the cow manure hits the proverbial fan.

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Burke’s problem is straightforward.  It has nothing to do with the merits or demerits of wind energy.  Disregard whether you think they’re “ballerinas” in the sky or a monstrous eyesore.  In its heyday, the wind salesmen made all sorts of extravagant claims for their wares, including “getting the USA off foreign oil” and “combatting global warming.”

As I said, “extravagant.” Ignore all this.

Focus on ethics.

In January 2007, David Vincent signed a wind turbine lease with Noble Environmental (aka Noble Chateaugay WindPark).  David is currently Burke Town Supervisor.  Click here for a copy of David’s lease, available from the Franklin County courthouse.  Below is a screenshot of the first and last pages.

Next, Arnold Lobdell, also currently on the Burke board.  Lease signed November 2007.  Click here for the entire lease.  Below is a screenshot of the first and last pages, together with a page showing his relatives as co-owners of the lease.  The same applies to Dave Vincent; his relatives are co-owners of the lease.

Lastly, Bill Wood and his dad.  Bill is currently on the town board.  Lease signed April 2007.  Click here for the entire lease.  Screenshots, below.

Do these leases violate any applicable code of ethics?  Let’s start with the Town of Burke.  Burke does in fact have a code of ethics on the books.  Not surprisingly, it’s less than clear on the matter of conflicts of interest between board members and wind companies.  (Click here to read an article I wrote noting the obfuscations, evasions and other nonsense in Burke’s code, drawn up by then-Town Attorney Brian Stewart, whose law firm represented Noble Environmental.  For all practical purposes the Burke code is a farce.)

The one point worth noting is the following:  “It is the policy of the [Burke] Town that all Subject Individuals [Vincent, Lobdell, and Wood, for instance] must avoid Prohibited Interests or the appearance of a conflict of Interest” (emphasis added).

Frankly, it’s murky whether the Vincent/Lobdell/Wood leases constitute a “prohibited interest” under Burke’s code of ethics.  (It depends on whether you are a “loose constructionist” or “strict constructionist” when interpreting the code.)  Regardless, the Vincent/Lobdell/Wood leases sure as hell give the appearance of a conflict of interest — and that in itself constitutes a violation of Burke’s code.

There are two additional codes of ethics to which Vincent, Lobdell, and Wood can be held accountable.  One is the NYS General Municipal Law Code of Ethics (click here) which, by the way, takes precedence over municipal codes of ethics.

Let’s parse (“break into parts”) the passages, above.  § 805-a.1.c.

“No municipal officer shall … 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.”

Followed by § 805-a.1.d.

“No municipal officer shall … 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.”

In other words:

“Messrs. Vincent, Lobdell, and Wood shall not enter into any lease agreement with a wind developer — where there is ‘advance money’ paid or the promise of lease revenues — when such lease revenues (whether paid in advance or promised upon completion of the wind farm) amount to financial ‘compensation’ for voting ‘yea’ on a town-wide wind energy ordinance” (which is what “compensation for services to be rendered in relation to any matter before any municipal agency” means).

The prohibition is reiterated in slightly different form in the following paragraph, which can rightly be rendered as:

“Messrs. Vincent, Lobdell, and Wood shall not enter into any lease agreement with a wind developer — where there is ‘advance money’ paid or the promise of lease revenues — when such lease revenues (whether paid in advance or promised upon completion of the wind farm) are dependent or contingent upon Messrs. Vincent, Lobdell, and Wood voting ‘yea’ on a wind energy ordinance.”

Looks to me like Vincent, Lobdell, and Wood have broken both the Burke Code of Ethics and the NYS General Municipal Law Code of Ethics.  (If I’m correct in this, all 3 men can be either fined, suspended, or removed from office, says the NYS code.)

The third code to which Vincent/Lobdell/Wood appear to be accountable is a special code created by Attorney General Andrew Cuomo, under prodding from our own District Attorney, Derek Champagne, back when Vincent, Lobdell, and Wood signed the above leases.  Derek noted an obvious conflict of interest.  (Note:  His successor, Glenn MacNeill, is blind to this continuing, blatant self-dealing.)  The result of Derek’s prodding was the creation of the Wind Industry Ethics Code within the Office of the NYS Attorney General.  (Click here for a copy.)

Basically, Cuomo gave the wind companies an ultimatum:  We’re gonna sue you guys unless you agree to clean up your act by signing this code of ethics my office is drawing up!

Whatever Cuomo said to Noble and First Wind, it worked; they both signed up immediately.  By July 2009, 14 more wind companies had signed onto Cuomo’s Wind Industry Ethics Code.  Included in the 14 was Horizon.  Derek Champagne was delighted.  “This common sense approach by Attorney General Cuomo,” announced Champagne in a press release,

“will help ensure the promise of clean, renewable energy is not tainted by shady deals and improper relationships between wind power companies and local government officials. I look forward to taking part in the new task force and applaud the Attorney General for his leadership on this important issue” — “Attorney General Cuomo Establishes Code Of Conduct For Wind Energy Companies Operating In New York,” October 2008, NYS Attorney General’s website.

Derek’s enthusiasm was underscored by Michael C. Green, Monroe County DA, where there was similar wind company “sleaze.”

“I commend Attorney General Cuomo for establishing this new Code of Conduct for the wind-power industry. When properly developed, wind power can and should play a vital role in our state’s energy future, but it cannot happen in a way that erodes public confidence with allegations of self-dealing and corruption” —  “Attorney General Cuomo Establishes Code Of Conduct For Wind Energy Companies Operating In New York,” October 2008, NYS Attorney General’s website.

Gabriel Alonso, Chief Executive Officer of Horizon, was likewise in a celebratory mood (or at least pretended to be).

“On behalf of Horizon and the communities across the United States that are our partners in wind energy development, we are very proud to be part of the initiative announced today by the Attorney General of New York to promote transparent and ethical conduct in the wind power industry in the State of New York. We look forward to working with the newly created Task Force and the Attorney General in order to capture the full potential of wind power for all New Yorkers” — “Attorney General Cuomo Announces New Ethics Code Adopted By Wind Industry Companies Across NY,” July 2009, NYS Attorney General’s website.

Here’s where things get interesting.  Gabriel Alonso and his wind company, Horizon, initiated the Jericho Rise wind farm — the very project Gov. Cuomo brought back from the dead with his gift of $206 million.  The very project Vincent, Lobdell, and Wood currently have their eye on with their wind law.  The very project Lobdell signed onto with his lease (see above) in November 2007.  In fact, Bill Wood has publicly disclosed that he intends to lease land he owns in Chateaugay to Jericho Rise — and appropriately recused himself from debate and voting on the Burke wind law passed a week ago (June 9, 2015).

Here’s where things get tricky.  (“Tricky” in all senses of the word.)  Horizon was subsequently sold to Goldman Sachs, which then sold the company to Energias de Portugal (EDP), calling itself EDP Renewables, the current proprietor of the Jericho Rise windplant (such as it is).

The obvious question is, Did Horizon’s signature to the Wind Industry Ethics Code carry forward to EDP Renewables?  I would argue it did.  It did since this was the understanding by which the Jericho Rise project was allowed to remain viable, and not get shit-canned by the Attorney General.  Typically when a company changes hands, its obligations and commitments carry forward to the new owner.

The next question is, Does Attorney General Eric Schneiderman consider his predecessor’s Wind Industry Ethics Code still in force within the Office of the Attorney General?  My guess is, nobody knows.  Even within the AG’s office, nobody is certain.  I’ll bet the Wind Code is in limbo, gathering dust on a shelf.

In the end, it’s up to the AG’s office to either revive and invoke its Wind Code, or give the Jericho Rise project a “get out of jail free” card and say “We’re not getting involved.”  (Hang onto that “get out of jail free” card.  I’ll return to it in a moment.)

The AG’s Wind Code begins with the following preamble.  (The bold highlighting is mine, of course.)

WHEREAS, the New York State Office of the Attorney General (“OAG”) bas received numerous complaints regarding Wind Farm Development from citizens, groups and public officials alleging improper relationships between Wind Companies and local officials; and

WHEREAS, the OAG seeks to ensure that wind farm development is done in a transparent manner, in which municipal officials and companies are accountable, and wind farm development business practices are established and maintained so as to avoid conflicts of interest, or the appearance thereof …

And then immediately addresses conflicts of interest:

I. CONFLICTS OF INTEREST — PROHIBITED

I. General Standard: The Wind Company shall not knowingly, directly or indirectly offer to, or confer on, a Municipal Officer, his or her Relative, or any third party on behalf of such Municipal Officer, any benefit under circumstances in which it could reasonably be inferred that the benefit would influence such Municipal Officer to commit an official act or to refrain from performing an official duty in connection with the Wind Company’s Wind Farm Development, unless such Municipal Officer recuses him- or herself from any official duties in connection with the Wind Company’s Wind Farm Development.

Let’s copy out the bold-face passage, above.

“The Wind Company shall not knowingly confer on a municipal officer or his or her relative any benefit under circumstances in which it could reasonably be inferred that the benefit would influence such municipal officer to commit an official act in connection with the Wind Company’s Wind Farm Development.”

Here’s the interesting part.  The code defines the phrase Wind Farm Development to mean “any stage of past, present or future development or siting of wind farms, wind turbines, wind power and related facilities or wind power projects in the State of New York, whether considered, planned, attempted or completed, including but not limited to permitting, licensing, construction and energy production.”

I interpret the AG’s Wind Code to mean the following.  Since a lease with a wind company is an obvious “benefit” to the leaseholder — otherwise, why would anyone seek to enter into a financially lucrative property lease with a wind company? — the code effectively says,

The Wind Company shall not enter into a lease agreement with any town board member (or family member) under circumstances in which it could reasonably be inferred that the lease would influence such Municipal Officer to commit an official act in connection with the Wind Company’s Wind Farm Development.”

And what might that “official act” be?  Obviously it’s the passage of a pro-wind energy law for these three town officials.

Now, you might object, “But those leases are more than likely obsolete!”  Not so fast!  Read carefully the code’s definition of Wind Farm Development; it has what’s called a “tail.”  Wind Farm Development “means any stage of … future development … whether considered, planned, attempted or completed, including … permitting, licensing, construction and energy production.”

Putting this definition (Wind Farm Development) together with the material benefit of a lease (as with the 3 leases shown, above), a compelling argument can be made that David Vincent, Arnold Lobdell, and William Wood can never, ever, participate in any official, municipal discussion of a wind law.  They are forever compromised.  Regardless of whether their leases, above, are considered current or “expired,” the AG’s Wind Code defines their leases as having a residual effect, thereby removing these 3 from participation.

They must recuse themselves.

This brings us back to that “get out of jail free” card, mentioned above, and the two men, below — two lame excuses for law enforcement.

Two weeks ago a delegation of Burke residents (representing numerous Burke property owners who do not want wind turbines in the township) went to see Acting DA Glenn MacNeill.  There were (quite rightly) alarmed that the Burke Town Board was holding a meeting that very evening where a proposed wind law (permitting wind turbines within the township) was going to be both publicly discussed and, they feared, voted on — all in the same meeting!  This is called “railroading.”  It’s also called “sleazy.”

The Burke delegation had not even seen the proposed wind law, and were hardly in a position to discuss it that evening — much less watch their board vote on its passage.  Quite naturally, they sought out Franklin County’s chief law enforcement officer, Glenn MacNeill, to ask him to intervene and persuade the town board to postpone a vote — if it was planning one.

They arrived at MacNeill’s office with a tape recorder and notified him that they wished to tape their conversation with him.  A reasonable request, since he is a public officer (“public” means “public”) being asked to assist Franklin County residents in a matter of public interest, where they feared a crime was about to be committed.  (Breaking the NYS Gen. Mun. Law, plus the Burke Code of Ethics, is a crime, in case you’re wondering.)

Right off the bat, MacNeill demanded they leave their tape recorder outside.  So, they did.  They then showed him copies of the wind turbines leases reproduced, above, belonging to Vincent, Lobdell, and Wood, and they produced a copy of the Burke Code of Ethics.  “We feel these contracts violate our code of ethics, and we fear the law will be voted on this very evening.  Can you please call the Burke supervisor and urge him to postpone a vote?”

MacNeill’s answer was No, I won’t!  He told them to contact the State Attorney General’s office, and then dismissed them.  (Yeah, this guy is taking out ads in the Malone Telegram, telling us that he’s really, truly fit to be the next DA!)

Soon after they left his office, they got a call from MacNeill on their cellphone.  He’d had a “come to Jesus” moment.  (“Oh my god!  I’m running for DA and I just behaved like a jackass!”  Was that it?  Or was it a quick call to Derek Champagne:  “Derek!  Help!  I just told a delegation from Burke to get lost when they asked me to get involved in a wind energy dispute!  What do I do?”  Derek would have told him to call them and say “Call Glen Michaels, in Plattsburgh.  Here’s his number.”)

MacNeill called Janet Tacy and told her to call Glen Michaels in Plattsburgh. “Here’s his number.”

Who is Glen Michaels?  He’s the Assistant Attorney General stationed in Plattsburgh.  Janet & Jerry Tacy promptly called Michaels.  He seemed interested in what was about to transpire that evening at the Burke town meeting, they tell me.  In fact, they were under the impression he was going to contact Nathan Race, Burke’s attorney, and ask him to contact Supervisor David Vincent and inform him not to hold a vote on the wind law.  (Whether Michaels called Race or not, no one knows.)

The Tacys attended the meeting, Race was not there, and no vote was held on the proposed wind law.  (Click here for a copy of the proposed wind law, which was in fact passed the following week, June 9, 2015.)  There was a relatively brief discussion of the wind law, both for and against.  And that was the end of it for that meeting.

The following day, I wrote Michaels a long email, giving him background on the Burke story (all of which he probably knew) and attaching the 3 wind leases, above, together with the Burke Code of Ethics.  “It seems to me,” I wrote, “there are two issues requiring [your] attention.  (1) Is there a conflict of interest with these board members and indeed the town attorney?  I.e., does their involvement with these wind companies violate the Burke Code of Ethics and, more importantly, the NYS Gen. Mun. Law Code of Ethics?  (2) What is the role of Article 10 in this whole process?  If Article 10 is brought into play, I would ask you to allow community members to have input in the decision-making.”  (Article 10 was rammed through the legislature by Gov. Cuomo in his first several months in office.  It removes the approval and planning of projects, like windfarms, from municipalities to the state.)

Michaels wrote back and said nothing about getting involved.  Instead, he recommended that, if Burke constituents feel there is a conflict of interest among town board members, they should inform the board of this and, if they are not satisfied with the response, they should sue the board under what’s called an Article 78 procedure.

I responded with a sharp email, informing him that it is his job to uphold state and municipal codes of ethics.  It is his job to determine if they are being violated.  And it is his job to sue the town board if there is evidence of  conflict of interest.  None of this is the responsibility of Burke residents!

Ever seen this cartoon?  First, the DA blows off a delegation of residents.  Then the Assistant AG blows me off and, by extension, blows off Burke constituents.  If you guys think there’s a problem with your board, you handle it!

MacNeill & Michaels:  “Not responsible for anything!”  Great!

Here’s a diagram of the whole friggin mess.

Nathan Race

Let’s wrap up with Derek Champagne, a man noteworthy for his common sense and courage.  A man who understood the job descripion of “District Attorney.”  A man who is now a Family Court Judge.  In Champagne’s words, “This common sense approach by Attorney General Cuomo will help ensure [that] the promise of clean, renewable energy is not tainted by shady deals and improper relationships between wind power companies and local government officials.”  Sentiments echoed by Monroe County DA, Michael Green:  “Wind power can and should play a vital role in our state’s energy future, but it cannot happen in a way that erodes public confidence with allegations of self-dealing and corruption.”

Let’s use common sense when it comes to shady deals and improper relationships between wind power companies and local government officials.  No more self-dealing and corruption.

Go ahead, call them “ballerinas” in the sky, if you like!  Pass a wind law allowing them!  Sign a wind turbine lease!  Kiss a wind turbine on the mouth, if they turn you on!  But don’t, for God’s sake, sit on the Burke Town Board and pass a wind law when your signature is on a wind turbine lease!  It’s called Common Sense!  DA Michael Green calls this sleaze an “erosion of public confidence.”  You bet it is!

Messrs. Vincent and Lobdell, you blew it.  Do the ethical thing:  Reverse yourselves.  Should you dig in and refuse, the state should intervene and do it for you — and remove you two from office.