AG inquires about conflicts on fracking votes in Southern Tier
7:55 PM, Dec 11, 2012
Read the letters between town officials and the state Attorney General's Office
The New York State Attorney General’s Office has launched an ethics inquiry concerning votes by Southern Tier town board members related to natural gas drilling, according to documents obtained by the Press & Sun-Bulletin.
In single-page letters sent in October, Assistant Attorney General Judith Malkin indicated that drilling-related action by town boards earlier in the year raised questions about potential conflicts of interest.
“We have been alerted to concerns about Windsor Town Board members with signed gas leases voting on issues related to hydrofracking,” one of the letters states. “This concern raises possible conflict of interest issues.”
“In that regard,” the letter adds, “would you please send us a copy of the town’s ethics code.”
Michelle Hook, a spokeswoman for the state Attorney General’s Office, declined to disclose the number or a full list of the municipalities that are involved in the inquiry, or discuss the status of the inquiries.
Following requests under the state Freedom of Information Law to a sample of municipalities, the Press & Sun-Bulletin received correspondence between the AG’s Office and the towns of Colesville, Sanford and Windsor.
The boards of those three towns are among more than 40 across the state that passed a similarly-worded resolution stating that it would be an “irresponsible and premature misallocation of town resources” to pass a ban or moratorium on natural gas drilling until the state Department of Environmental Conservation completes its review of hydraulic fracturing.
At least one member of the each of the Colesville, Sanford and Windsor town boards has an active natural gas lease a review of records in the Broome County Clerk’s Office shows.
“Our office takes every complaint we receive seriously,” Hook said of the letters, “and felt it was our responsibility to follow up with these respective towns.”
“We also wanted to relate the concerns we received to the boards, because they should be aware of any concerns being expressed about their practices,” Hook added. “Our efforts were not accusatory, and we believe that town boards should enforce their own ethics rules.”
The letters provide no indication that the towns or any town officials are being formally investigated.
Officials in the three towns, in formal written responses to the Attorney General’s Office, each took a different approach to addressing the inquiry — but generally took a defensive tone.
“Quite frankly, I find your letter very strange,” Town of Colesville attorney Alan Pope wrote in an Oct. 31 response to the Attorney General’s Office. “I have never had the State of New York insert itself into local municipal issues.”
The Town of Colesville does not have a formal ethics code. All five town board members voted May 3 on the resolution opposing a local drilling ban, including Steve Flagg and Glenn Winsor, who county records show have interests in active mineral rights leases.
“Would you please provide me with the specificity of the ‘concerns’ that you say the Attorney General was ‘alerted to,’” Pope added. “You also state that there has been ‘voting on issues related to hydrofracking.’ What exactly are you referring to?”
Flagg, in an interview, said his small lease was inherited and he doesn’t stand to make significant profit from drilling. He said he feels the May 3 resolution was not pro- or anti-gas drilling.
“They’re basically making an accusation here, and they’re not substantiating the issue,” Flagg said. “I don’t think there’s a conflict of interest here.”
The other two towns approached the matter differently:
• Town of Sanford Supervisor Dewey Decker said in an interview he feels he “did the right thing” by recusing himself and sitting in the audience during a May 8 vote on the same resolution.
“I’m kind of in a unique situation because I do have quite a bit of land,” Decker said. “I am a farmer, I did sign a lease, and I am the town supervisor, and I’m the head of a coalition.”
Sanford’s detailed response to the Attorney General’s office outlines how ethical questions surrounding seven different resolutions have been handled since 2009. Decker did participate in a November 2009 vote regarding a water withdrawal license for XTO Energy, the letter states.
In January of this year the town passed a new ethics code and Decker has sat out of most natural gas-related matters since. Sanford’s letter to the Attorney General’s Office, written by town attorney Herbert Kline, doesn’t indicate Decker recused himself from the vote on a Sept. 11 resolution where the town board decided it would no longer allow verbal comments from residents regarding gas drilling at town meetings.
Neither does Kline’s letter address a lease held by Sanford Town Board member David K. Sexton, who in 2008 signed an five-year agreement with XTO Energy for a 3.86-acre tract of land, according to county records. Sexton did not respond to a request for comment.
• The Town of Windsor’s response, in the form of a letter from Supervisor Randy Williams, defends his participation in a May 2 vote on the gas drilling resolution.
“It does not appear to me that a conflict of interest can be created by passing a resolution that supports New York State (and) that voices our trust/support that the state will take appropriate action and is neutral,” Williams’ letter states.
Williams, whose tenure ends on Dec. 31, signed a five-year lease in 2008 on a 30.3-acre property, according to county records.
The town’s code of ethics forbids any official from participating in decisions when “the action could confer a direct or indirect financial or material benefit on himself or herself, a relative, or any private organization in which he or she is deemed to have an interest.”
“I think it was a chain letter,” Williams said in an interview this week, “and I think it was a fishing expedition on the part of the Attorney General’s Office.”
Officials in all three towns said they had not received a response from the Attorney General’s Office.
'Who doesn't have an interest?'
The inquiry by the Attorney General’s Office follows a series of mixed signals from Albany this year that has turned upstate New York into a battleground over local control of natural gas drilling.
After state officials hinted in the spring hinted that local stances on hydraulic fracturing would play a role in where the DEC would issue the first permits, more than 40 town boards passed resolutions similar or identical to the ones approved by the Windsor, Sanford and Colesville boards. At the same time, more than 100 other New York municipalities have passed temporary or permanent bans on natural gas drilling.
The text of the resolutions supporting the DEC — mainly approved by towns in Broome, Chenango, Steuben and Tioga counties — was distributed to municipal officials this spring by the Joint Landowners Coalition of New York.
JLCNY attorney Scott Kurkoski said while the resolutions “simply show support for the state” and are not pro- or anti-drilling, each municipality was advised to consult its own town attorney before taking action in the resolution.
Kurkoski noted that almost all town board members in New York are land owners, and questioned those who argue that any land interest should preclude an official from dealing with drilling-related matters.
“I do get concerned at times when someone says ‘Well, you’re a landowner so you shouldn’t make decisions on these issues,’” he said. “What town board member in this state is not a landowner?...Who doesn’t have an interest?”