The Question of Paul Aubertine's Potential Wind Conflict of Interest?????

Suddenly on K’s Pandora blog a discussion has cropped up about new Cape Vincent town councilman Paul Aubertine and his conflict of interest since his parents have wind leases with BP. Rick Wiley at JLL throws his support behind K and her post.

Now I’m am sure to your amazement … I fully agree on the basic premise of the Pandora’s post on Paul Aubertine’s conflict and that he should not be in any wind issue discussions as he was at the last town board meeting.

I encourage you to read her post at the link below.

 

http://pandorasboxofrocks.blogspot.com/

This post is good and raised good questions, however, it also opens a door to other important details she is missing. Or ignoring.  Of course commenters on both blogs  jump right in on cue to follow the script without any further thought.  And of course the script says this is entirely BP and Aubertine’s fault.  She has to keep it simple so the intended audience will react correctly. Why are you people so easily manipulated???

So let’s examine a few more details shall we.  And a little CV wind history and records are in order to really understand the issue.

In my opinion Aubertine does have a direct enough conflict that he should recuse.  I base this on a number of things.  A Jefferson County Ethics Board opinion you can see below, about former wind conflicted  CV councilmen and a portion of a NYAG office opinion below as well.  Note the AG idea that even the “appearance” of a conflict should be avoided.  Aubertine is way beyond just an “appearance” of a conflict.  And he may be in violation of both the state ethics code and the CV ethics code. 

 

 

I also base my opinion on having had direct face to face conversations with top lawyers and investigators  with former AG Cuomo’s office on the conflicts of  other former CV officials.  om everything I have learned, Aubertine’s relationship is too close to the family BP leases to claim no conflict. 

And remember the former Edsall PB pro wind Albany lawyers made an argument that officers like Edsall or others with leases or close family relations might get away with discussing and voting on wind issues if they only discussed the “other” wind farm. Not the one they had leases or a direct family member had ties to.

But that relationship no longer exists and is not an option for Aubertine since BP is the ONLY wind developer now.

Now Pandora wants to lay the entire blame on BP for not disclosing Aubertine’s conflict and on Aubertine.  Yes, of course, that is a major part of the issue…however, that is only one narrow part of the story.  There are responsibilities that lie elsewhere as well if we take the examination of conflicts and ethics to a fuller and more accurate examination. 

There is also a very relevant question as to  why right now is Aubertine being allowed to be in the discussion without any objection.  Who is enabling and tolerating him with his conflicts? Pandora conveniently skips over that discussion.

For example…when Mickey Orvis stepped down as CV councilman it left a TB open seat.  I have it from two very reliable CV Republican sources that Brooks Bragdon and Urban Hirschey were seriously considering appointing Paul  Aubertine to the empty board seat.  One person told me about this, but it seemed real odd so I kinda passed it off, but then another verified it.  I was told by one source they wanted Aubertine because they thought it would be “fair”. Did the elder Aubertine actually have some unseen influence on the current board?  To me this seems like a real weird move to even consider!

So why would Bragdon and Hirschey (maybe others, I don’t know) want to place a person on the board who they absolutely knew would have a conflict and would raise such a controversy after a major part of their election platform was ethics????  Especially when Michelle Oswald was available??????? Now there is a complicated question I’ll bet no one will touch.  And now there young Aubertine as big as life with obvious conflicts that may even violate ethics codes...instead of Oswald...and he is allowed to be right up to his new town board eyeballs in the wind discussion.  Somebody want to explain fiasco to me.  Is it any wonder we have seen faulty choices that lead to a solar zoning fiasco in this town????  You are starting to see why!

Now let’s be very clear.

By itself, Paul Aubertine’s conflict IS NOT ILLEGAL and does not legally preclude him from being on the TB. Conflicts surface on all kinds of issues in all kinds of govts.  However, if he acts upon the issue creating his conflict that is another matter and in violation of NYS and CV ethics codes.  So is he acting on is conflict?...and who is allowing that to happen?

Now in the Jefferson County Ethics Board letter above you will notice a cross reference listed as State Gen, Mun. Law sec. 809. To save you time I know this section very well.  I argued it in long detailed discussions with both the NY AG’s office and the Jefferson County Dist. Attorney, and numerous other attorneys.  That is a section on ethics and very clearly shows that Aubertine has close enough ties with family leases to definitely have a conflict and should recuse. 

Here is a link to NY Gen. Mun. Law Art. 18 sec 809.  See for yourself!

http://codes.lp.findlaw.com/nycode/GMU/18/809

But there is something else there too just as important.  It says under such circumstances Aubertine should officially disclose his conflict.  Our CV ethics code basically is modeled roughly after state law and requires the same thing.  It isn’t just BP exposing this to the AG’s wind ethics code that matters. Although it is important.  And remember the AG’s code is VOLUNTARY which makes it less potent. That is why BP can get sloppy with it as they have.   And as we have found out the AG’s office doesn’t seem to really give a damn about local ethics anyhow.  So who should?????
Because the AG code probably isn't even reviewed and sits in a dusty file somewhere.

In 2008 about three years after some  former CV officers signed wind leases, the big pro wind Albany lawyers swept into town and saw no disclosures on record and probably realized what a screw up that was and the implications and  probably said … “Hooooooly crap… you guys haven’t disclosed yet…well get on it right now!!! 

Former town supervisor Tom Rienbeck then required disclosure statements from all his town officers and himself…not just the conflicted ones.  I have all of them in my files, and we will get to that in a minute as how it relates to P. Aubertine and the Pandora post because one in particular is very important since K brought it up.

Having worked with several WPEG attorneys on the legal wind issue matters they tipped me off that these officers should have officially disclosed when they signed leases or if they were closely related by family.  So I checked town records and you can see in the letter below they had not as of 2007.  I also asked the town board directly and they said no disclosures, and why should we disclose.  More than likely the Albany lawyers got wind of my official request for disclosures and immediate tried to plug that hole.  A big violation of state and local ethics codes!!! And suddenly after 3 years out of the blue Rienebck is making a big deal about disclosures.  We based our WDT WPEG conflict ad you’ve seen on these official disclosures.  That is how important they became. It finally exposed what a wind  ethics cesspool CV really was. 

And I kept asking WPEG the question.  If these people took actions on wind issues without disclosures and the citizens didn't have official and legal disclosures to know...would all those actions be invalid, and because we didn't know would that erase the statute of limitations since we just got these disclosures now?  It was an interesting question we debated with some WPEG lawyers.

 

 

 

Now in the Pandora post she brings up that Aubertine has a similar conflict relationship like Karen Bourcy on the PB who has a son with Wood Farm who has wind leases.  She notes that Karen’s name is listed on the BP, AG disclosures, and has recused on wind issues.  Then K sets up Bourcy as an example Aubertine should follow.  Holy crap!!!  Hold on just a minute here!!!  Is she serious???

In my opinion Karen Bourcy is the last person on the entire planet that K should be suggesting as a shining example of ethics and recusal. 

As per state and CV ethics codes she should have, but didn’t, disclose her conflict for at least 3 years AFTER  her family signed wind leases.  She finally did disclose in 2008 as you can see here with her disclosure below…BP is not her only disclosure as Pandora suggests. I think this one is far more important, especially the lateness of it, and how she took votes with NO disclosure for the public to see!

 

 

And recusal????  She only started recusing once the AG had her under investigation, and a new govt was in place.  But that was almost pointless because she did not recuse much earlier when it really would have mattered on very critical issues in the wind battle. That was while she was on Edsall’s planning board where she just unquestioningly and repeatedly rubber stamped Edsall’s conflicted votes.  That caused critical damage on behalf of the pro wind agenda which dramatically accelerated the wind developer dominance and destruction of our community.  And that was all while she and others had not disclosed any conflicts as per law.  The damage was long done by the time she started recusing!

Had she recused THEN, it might have radically changed the wind battle in the favor of more reasonable forces and brought some sanity to the issue.  But she didn’t and in my opinion she can be credited among others as having done significant damage to this community by her actions. Not to mention she came under the AG’s investigation.

But here is the real problem if you want to talk about disclosures and ethics and recusals and who has responsibility.  Then let’s examine that closer.

After knowing all this about Bourcy and seeing first hand the destruction it caused to this community… in an unbelievable move Hirschey and his govt simply turn right around and appoint her as an alternate to the current planning board!!!  Ethics????  What possible absurd justification could they come up with for this move?  It even influriated some WPEG people.  

 Oh well…it was basically the same as considering appointing Aubertine…it was “fair”   I remember asking Clif Schneider about it.  His response was basically…"well nobody else stepped up”  Oh great!  So why not wait and recruit a better candidate? Ya know like maybe somebody not under investigation by the AG’s office for God’s sake!!!!  She was after all an alternate, it wasn’t that critical that somebody be appointed right away.  And people wonder why we have a solar zoning fiasco in this community with this kind of judgment!!!

 I can’t believe K at Pandora who Wiley says  is “no fool” when it comes to ethics is even suggesting Bourcy as some kind of role model for Aubertine…that is really absurd!!!  I am afraid she got very badly fooled on that point!

 Of course since Hirschey agreed to appoint and support Bourcy despite her previous egregious record, and even technically still under AG investigation …that makes it perfectly OK.  You don’t question those things! How the hell do you ethically justify appointing someone with that record and under investigation to an important town position????  And after you ran on a high ethics platform. 

Of course they also appointed Rockne Burns with a wind lease as far as I know.  That too baffles me. And Burns was appointed I believe it was to the new comp plan committee in 2012 when they were also drafting the new zoning.  Was that ethical????  In general, however, I think Burns has been more sensitive to his conflict issues and hasn't caused major damage to the community.

We know Aubertine is not likely to recuse on his own. His actions show that already.  So who does the ultimate responsibility come to, to see ethics laws are followed in CV?  To me those who stand by are just as guilty as the ethics violator.

Now if you remember, Mr. Hirschey and his candidates ran almost entirely on ethics.  Below you can see the part of their campaign statement related to that issue.

 

 

This begs a question based on their promises.  Have they followed through?  What does the record show?  Well appointing Boucy was a complete and blatant  failure  in that regard. In my opinion that was a direct slap in the face of the voters that supported Hirschey and crew.  They also seem to be slipping badly by letting Aubertine sit right there with them discussing wind issues.  

Has Pandora or anybody asked Urban WHY he is allowing that?  Well  of course not!!!  We simply do not ask those uncomfortable questions of the supervisor! If you do you are a nut case!! Like geee Urban why can't you read your own zoning law!!!  See a trend here???

Note they say they will update the CV Ethics Code.  Have they done that?  Because the code should be much more specific to mirror state GML sec. 809 that outlines clearly what type of family relationships create an actual conflict. Like Aubertine’s for example.

Then note that part about making sure town officials abide by the code.  Ok…so has Hirschey made Aubertine submit an official disclosure of his conflict and who he is related too…as required  by state law AND our ethics code, or did that sorta get overlooked?  It should have been done right after he was sworn in and put in town record. Or like Rienbeck are we just sorta going “be fair” and ignoring that  for awhile?????  And is Hirschey raising an issue with Aubertine’s conflict?  If not…why not????  Here is the CV Ethics Code.  See that apart about disclosures and conflicts?  Wonder how that has been followed by Aubertine and Hirschey???

 

Ya know I think I will contact the town clerk and see what is in town records!!!  Anyone wanna put up a bet?

Since Hirschey ran on ethics both in 2009 and 2011 how has that actually worked out in other areas?

Well, first look at the quote below.  I cut and pasted it from a report on Hirschey’s 2010 wind law committee where he made no real fuss over people like Donny and Marty Mason with wind leases participating on a committee to draft a wind law.

 

 

  

 I believe the quote was a report from one of the other blogs, possibly from minutes… but it is a real quote.

As you can see by his comment Mr. Hirschey is apparently not too disturbed by two conflicted people on the wind law committee.  He says “I don't have a problem with it”, and in fact they participated through the entire wind committee with Hirschey until it imploded in a deadlock a few months later.  Just as now he seems to have no problem with Aubertine discussing wind issue despite Pandora’s obvious objection and it may be a violation of ethics laws.

  Maybe once again it is to be “fair”.  How far do we push this “fairness approach” at the cost to ethics????? 

Despite her good post on the basic issue she doesn’t want you to examine too far as to who else has a responsibility on the ethics matter.  It’s much cleaner and less complicated to frame it as all BP and Aubertine’s faulty.  That is grossly unfair!

Now to Mr. Hirschey’s credit he did write the NYAG’s office for an opinion on the Masons in 2010.  But note how he frames the conflicts in his letter below.

 

 

 

 It is like he is trying to justify the participation of these conflicted people.  The “ this is a law of general application impacting no particular councilman”  argument is pure nonsense!  Both those guys had severe and direct conflicts, and direct access to the committee would give them a direct impact to be able to distort the law in their favor.  And in fact that was what happened and the deadlock they created on sound and where turbines should be sited proves that point.  Yet Hirschey doesn’t seem to have a grasp of that ethics fact in his letter.

I have no record of a response from the AG…but you can see below part of another AG opinion that addresses the same issue.  And there is absolutely no question that Donny and Marty Mason were far far beyond a simple “appearance” of a conflict that eroded the public trust!!!  But like I said apparently that didn’t  upset Mr.  Hirschey too much.

 

 

In point 3 Hirschey appears to try to insulate the conflicted councilmen by arguing they won’t approve the siting of the towers as if that somehow separates the conflicted Masons from the issue. Again…nonsense!  He states the PB will approve any wind farm.  Yeah… and they would have to do that according to the very law the Masons would be allowed to have a direct conflicted impact on!!!  This argument is so full of faults, and holes and justifications of conflicts it defies logic from a person who ran on an ethics platform. 

And put all that aside for a minute. 

Did Hirschey not have a grasp on his planning board having conflicts of interest up to  their eye balls?  So we are going to let two conflicted councilmen have an impact on the law, then hand it over to a planning board full of wind conflicts of interest to administer where the PB has some discretionary power?????  He can’t be serious with these rationalizations.

Now if you wonder why Hirschey and his govt got into the solar zoning fiasco that they did…right here is a prime example of the faulty thinking and rationalizations that created it.  And no one wanted to question this judgment as Mr. Hirschey ran for election in 2011, now with the entire fate of our community resting in his hands!!!  And here he is raising no apparent objection to Aubertine’s obvious conflict as he discusses directly with Aubertine a few feet away, and the board, the wind issues and Art 10.  And this looks like a violation of CV and state ethics codes.

Then in 2010 after his first election Mr. Hirschey is perfectly willing to reappoint Al Wood as zoning enforcement officer with he and his family’s direct and blatant wind  conflicts, AND after Wood created another zoning fiasco by allowing Roger Alexander’s private wind turbine. A permit on appeal the ZBA denied and the courts upheld. See the minutes below from 1/4/2010.

 

Well I guess this was another case of trying to be “fair” and heal the community????

So before K at Pandora gets too self-righteous about Aubertine’s conflicts of interest, she and her readers and JLL readers should examine the actual record a  little deeper to see the whole story  of who has, and is enabling conflicts of interest.

Some of her points are relevant….But it just  ain’t that simple!!! 

She should also be asking very pointedly WHY Hirschey and this board sit right there with Aubertine  allowing Aubertine to capitalize on his conflict in what appears to be a direct violation of state and CV ethics codes.  How is that even possible from a group who ran on high ethics?  Was all that campaign stuff just rhetoric or a scam to get elected because they figured the public would buy it, and it could divert any questions about their stance on the real issue…WIND?  

I with others argued the ethics issues right up to the top of the AG’s office… and it just pisses me off that still this nonsense is tolerated the way it is by people who promised this community a much higher standard of ethics.

If Hirschey and crew with a super majority on the TB stand still for this nonsense, then in my opinion they are likely tolerating the violation of state law and the CV ethics code they promised to protect.  Just how is that different from the previous govt????

 But you can bet you won’t see that discussion in Pandora’s post!