Posted by: Patricia Salkin | November 28, 2008

Local Legislator Cannot Be Removed For Voting On Wind Project

An appellate court dismissed a petition calling for removal of a town legislator that alleged that the legislator concealed a conflict of interest when he voted to approve a wind energy facility because the project would include a turbine on his property.  The Court determined that the petitioner failed to prove the existence of an actual conflict of interest.

 

The New York Public Officer’s Law sec. 36 provides, in part, that upon application by any citizen resident of a town or village or by the district attorney having jurisdiction in the municipality, a municipal officer may be removed from office by the court “for any misconduct , maladministration, malfeasance or malversation in office.”  The Courts have said that removal “generally will not be granted absent allegations of self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of public trust[,]…[and a] allegations of minor neglect of duties, administrative oversights, or violations of law…do not, in general, warrant removal.”  (see, Matter of Jones v. Filkins, 238 A.D. 2d 954).

 

Here, the Court said, that the alleged conflict consisted solely of the wind company’s proposal for a wind energy facility that identified the legislator as a proposed participating landowner on whose property a turbine would be located. Because the legislator and the wind company had not entered into any agreement with the company at the time of the vote, the Court could not say that his vote in favor of the project was affected by virtue of a conflict of interest. Further, the Court said that the alleged impropriety that he failed to make a public disclosure of the potential conflict does not warrant removal under Public Officer’s Law sec. 36.

 

Note: The conflicts of interest prohibitions for municipal officials contained in N.Y. General Municipal Law Article 18 would not apply in this situation since there was no contract between the wind company and the legislator.  While ethical considerations should guide public officials to avoid even appearances of impropriety such as here, where it was acknowledged that should the project move forward a future benefit would likely inure to the legislator, when ethics issues get to courts, judges are required to apply the governing statutes and case law to determine whether the complained of conduct is prohibited. Although the conduct here may not have violated a law, the bottom line is, it doesn’t look good. This is an example of the type of conduct that led the New York Attorney General to propose a voluntary code of conduct for wind farm developers.

 

Hedman v. Town Board of Town of Howard, 2008 WL 4952613 (N.Y.A.D. 11/21/2008)

 

The opinion can be accessed at: http://www.courts.state.ny.us/ad4/court/Decisions/2008/11-21-08/PDF/1393.pdf


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