BY DAVID BERTOLA
Business First

New York Attorney General Andrew Cuomo unveiled a new ethics code for the wind industry Oct. 30. It established guidelines to facilitate development of alternative energy in New York to assure the public that the wind power industry acts properly and within the law.

But was it necessary?

Robert Knoer says no.

Under the code - which companies agree to abide by on a voluntary basis only - wind companies are banned from hiring municipal employees or their relatives or knowingly using confidential information obtained by municipal officials during the course of their duties.

"We already have ethics codes that apply," said Knoer, a partner in Knoer Group PLLC and chairman of the Wind Action Group, an education and advocacy group geared toward maximizing wind energy in Erie County.

He cites as an example Public Officers Law Section 74, which prohibits officers or employees of a state agency, state legislators or legislative employees from engaging in a transaction in which they would directly have a financial interest that could conflict with their duties. He also referenced Article 18, Section 800 of the General Municipal Law, which defines conflicts of interest.

First signees under investigation

Last summer, the attorney general's office began investigating Noble Environmental Power LLC and First Wind to determine whether they'd improperly sought or obtained land-use agreements with citizens and public officials; whether improper benefits were given to public officials to influence their actions; and whether they entered into anticompetitive agreements or practices.

Coincidentally, those two companies were the first to sign the ethics code, agreeing to not hire, give gifts to or compensate town officials or relatives of theirs who may be responsible for approving wind-power projects.

Knoer doesn't represent Noble or First Wind. He suggested that these companies may have signed the agreement because they were being battered in the press without substantial information to back up the claims. He said accusations of unethical conduct are often brought up as grounds for opposing wind energy.

"If there's a municipal or other officer out there gaining an advantage, I'm opposed to it. Who wouldn't be?" he said. "But I also oppose using smear tactics without basis to push an agenda."

More than just a PR opportunity?

Participating companies caught violating the code of conduct the first time are subject to a $50,000 fine, which doubles for a second offense. Cuomo also established a task force to monitor wind companies to ensure that they are in compliance with the code of conduct.

State Sen. George Maziarz, R-Newfane, said introduction of the ethics code is an example of the attorney general being proactive.

"These corporations approach local elected officials, most of whom didn't have a lot of expertise in this area. As long as you know the rules in advance, I don't think the onus is on (the wind companies) as much as it is on local and state officials," said Maziarz, who chairs the Senate Energy and Telecommunications Committee. "Transparency is the one tool that keeps everybody on their toes."

David Flynn, a partner at Phillips Lytle LLP, represented BQ Energy on the Steel Winds project in Lackawanna. He thinks introduction of a new wind-energy ethics code makes sense.

"I don't think it creates a separate structure about what can and can't be done, (but) it adds a layer of disclosure so everyone understands the relationships within different parts of a wind development project," he said.

Often, he said, the kinds of municipalities a wind company deals with are those where a town supervisor, as an example, is in a part-time position, or may own land targeted by wind-farm developers.

The code, he said, helps this kind of information to be brought into public view, adds integrity to the system and creates confidence among community members, who can know that self-interest isn't driving decision-making.

"It lays it out there so you can see why a supervisor or other elected official is in favor of the project," he said.

Patricia Salkin, associate dean and director of the Government Law Center at Albany Law School, said under general ethics laws, municipal decision-makers should identify themselves as such and, when they have zoning or variance permits in front of them that could result in personal financial benefit, should disclose the financial interest and recuse themselves.

"Based on news accounts of what I read," Salkin said, "some officials were not doing this, and that's just wrong."

Of the code, she added, "It's not state law, it's not a statute, (it's) a voluntary code asking the wind companies, not the officials, to sign as that they will follow it."

Knoer said he wasn't aware of anybody being charged for violations under the code. The New York Times reported Oct. 31 that no one was prosecuted as a result of Cuomo's investigation.

But even the announcement of an investigation and a code, Knoer said, gives the appearance of wind companies doing something wrong.

"I'm all for transparency in government, to allow people to make choices," he said, "but I see (the code) as no more than a public-relations opportunity."