Apparent Misuse of Government Ethics Authority to Win a Vote
In <a href="http://www.nytimes.com/2014/01/09/nyregion/in-calm-of-a-nature-reserve-…; target="”_blank”">a
New York <i>Times</i> column today</a>, Michael Powell has unearthed an
ugly-looking government ethics situation in New Jersey involving apparent misuse of government ethics authority to win a vote.<br>
<br>
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 <a href="http://www.state.nj.us/pinelands/" target="”_blank”">Pinelands
Commission</a>, 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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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 <i>because</i> 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.<br>
<br>
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." <br>
<br>
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.<br>
<br>
It gets worse. The columnist called the EC, and was told by the
executive director that it had made no such determination.<br>
<br>
Apparent misuse of ethics authority, as here, can have other repercussions. Due to the
AG's order, <a href="http://www.peer.org/assets/docs/nj/1_7_14_PEER_Ethics_complaint.pdf" target="”_blank”">a
request for a determination</a> 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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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