New ethics commission could consider APA case
By Gwendolyn Craig
A retired Adirondack Park Agency staff member’s stymied attempt at submitting input this summer during the agency’s open public comment period could lead New York’s Commission on Ethics and Lobbying in Government to consider the matter and what it could mean for past and present state employees’ participation in solicited feedback.
For two decades Walter Linck worked on natural resource planning for the APA. He retired in June 2021. This summer the APA solicited public comments on a complicated policy matter involving roads in wild forest lands. Linck had much to say.
But on Aug. 23, APA Associate Counsel Sarah Reynolds wrote Linck that his written comments “appear to contain confidential information” and may violate post-employment restrictions. Reynolds said the agency would not consider them and referred Linck to the state ethics commission.
After this article was posted on the Adirondack Explorer’s website, the Explorer obtained a Nov. 10 “cease and desist” letter from APA Executive Director Barbara Rice to Linck. It said, “While your July 12, 2022 comments cannot be accepted, the Agency values public opinion and encourages your participation in future public comment periods, as long as your comments do not violate post-employment ethics requirements and do not disclose state confidential information.”
In addition to the letter, Rice emailed a five-part determination that ordered Linck to refrain from sharing or disseminating confidential information.
The newly created ethics commission “regularly provides advice and guidance to state officers and employees,” according to its website. Barbara Rottier, former associate counsel and ethics officer for the APA, contacted the commission on Linck’s behalf to find out if the state Public Officers Law prohibited state employees from submitting their own comments.
“I think it is an important question,” Rottier said. “There certainly are plenty of retired employees around and they do have expertise on various issues. Their input in certain cases would be very important—would be or could be.”
Linck also contacted the commission. He said an ethics commission staff member asked him to submit a formal request for settlement, which could be put before the commission’s board, potentially during the December meeting.
The Explorer reached out to the Ethics Commission beginning Oct. 20. The commission did not return multiple voicemails and emails seeking comment and Interim Executive Director Sanford Berland did not return calls.
Linck provided the Explorer with email communications between him and the ethics commission staff member, and Rottier confirmed she had been in touch with the commission.
There are portions of the law, Rottier said, that prevent a former employee from appearing before an agency within two years after leaving, but only “on behalf of any person, firm, corporation or association in relation to any case, proceeding or application or other matter before such agency.” Linck was representing himself in the comment, Rottier noted.
“We’re not disenfranchised just because we used to be employees,” she said. “We are still members of the public.”
Rottier has submitted comments before without any problem, she said. If a former APA staff member had to appear before the agency over a permit, that would be allowed, too, she said.
Linck said he was called to a meeting with APA staff this month, but it was abruptly canceled after the Explorer inquired to the APA if its position on Linck’s public comment had changed.
In a statement to the Explorer, APA spokesman Keith McKeever said the agency “strongly values public comment, which is a critical component of all agency deliberations,” but its position on Linck’s submission had not changed.
McKeever cited “two serious considerations” including “post-employment restrictions that prohibit any appearance or practice before their former agency for two years. Second, the public comment at issue contained references to internal APA and interagency deliberations and communications between staff and between attorneys and clients. The disclosure of these types of internal documents and information is also prohibited under the law.”
Linck said he didn’t release any documents, but referenced and characterized memos and communications. Rottier said internal APA and interagency deliberations involves the Freedom of Information Law, which is separate from the rules and regulations of the ethics commission. The Freedom of Information Law provides exemptions for records releases, but it is up to the agency whether to deny or allow access to potentially exempt material. The law says an agency “may deny access to records or portions thereof.” The law does not say disclosure is prohibited.
For Linck, it comes down to transparency. He wanted APA commissioners to have information that he believed, based on what staff presented in public, they did not have.
He is hopeful that the ethics commission will issue a ruling and his comment will be accepted.
“This will have ramifications across New York State, however it’s decided,” Linck said.
As a nonprofit, we rely on the support of readers like you.
Join the community of people helping to power our independent,