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.
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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.”
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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.
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“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.
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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.
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Interesting situation…
… should expert input be disallowed because someone has expertise and internal institutional knowledge in a case held in a public forum…?
How transparent should a regulator be, especially when state’s resources are involved?
The APA, by making an issue of ex-employees providing public comment only makes it appear something is amiss.
Yes, Todd. And I’d like to add here that Barbara, and then I, each contacted staff of the Commission for an opinion about me making comments on this issue – exactly as employees and ex-employees are encouraged to do. We each spoke with the same, very helpful staff member who presented us with what seemed a well considered, rational opinion that yes… I was not violating the ethics law by submitting my comments on this issue in the public comment process.
I didn’t need to go further. However, since the board of the Commission has surprisingly never issued a formal, full opinion on the question, I was called back by the staff person and asked if I WOULD go further and formally put it before the Commission.
Well, THIS IS WHAT THE ADIRONDACK PARK AGENCY SHOULD HAVE DONE IN THE FIRST PLACE! Instead, though, the lawyers quickly rejected my two comment letters in late July/early August without any valid legal conclusion – no more justification than their vague warning to me that I “may” have violated law. So I have agreed to do as the Commission staff member asked, and the question will now go before the full Commission – even though I have no assurance (gulp) what the outcome will be. It’s clear an answer is needed that will benefit State employees across New York in the future.
The essence of it all, though – and the most angering thing to me – is this: APA management chose to quickly write me an intimidating letter over taking the time to go through the only correct process and do the right thing. That’s a show of “ethics”?
is there any requirement of ‘harm’ intended proven in such cease and desist order? was there any personal damaging remarks to the agency that cause harm?
if policy decisions are merely questioned or opposed, why should freedom of speech law not apply? what was the audience for said comments that harmful status requires cease and desist order? is Delores Umbridge in charge of the agency?
Very funny. Indeed, Thomas…
One could say that the Ministry of Magic is declaring that all history at APA, as might be revealed to you Muggles in any way whatsoever (from merely pointing to the existence of key documents to storytelling) has vanished.
I must be extremely careful, now.
The acceptance of the State Ethics Law is a condition of State employment. “Freedom of Speach” is not absolute and after employment by the State of New York is tempered by the conditions of employment, accepted by the employee when they took an employment offer from the State (and not forced on anyone). It is not dissimilar to an employment contract or a Non-Disclosure Agreement – that in exchange for accepting employment, the employee agrees not to discuss certain matters either as an employee or after employment.
Ask Resident, you nailed it.
Walt, chill out and enjoy your retirement.
I agree completely with that, as I would expect all State employees would. But what does that matter? It doesn’t inform either of the two big questions here one iota.
Firstly, even the Commission staff responsible for providing over-the-phone guidance for State employees and ex-employees have agreed among themselves that neither the language of the Law, itself, nor the language of any of the formal, full opinions issued by the Commission provide a clear enough answer as to whether or not an ex-employee (as a member of the public) may do what I did without concern: provide comments to their State agency (“at the behest of the agency”) during a formal public comment period. Mind you, this is even though the attorney and staff person I spoke with supported me quite strongly and provided me with the opinion that I was within my rights. Directly contrary to the implication and tone of APA legal staff’s letter to me, I was assured I don’t need to worry about any legal consequences.
Secondly, the language of the Law doesn’t deal AT ALL with just what is or can be considered to be or “classified” by an agency as “confidential information.” Mind you: I released no Agency documents and would not do that. I did not excerpt or even quote any Agency documents in my comments. To make a point I DID, however, quote a few words of opinion from a fellow State employee and friend at the time as they were spoken to me in a casual, “water-cooler” type conversation about a relevant topic. (And I’ve since remembered and confirmed that another co-worker and friend of mine was standing with me at that time and also heard him express that opinion.)
How illegal is it for me to recount that little story?! To the end of my life, should I be forbidden by APA’s order from telling it to anyone either verbally or in writing, for fear of fines and/or other legal consequences? From the overreaching language of their order to me, that’s actually my situation, now.
Are we living in China?
Maybe our new Governor, Kathy Hochul, thinks so and won’t be at all embarrassed if this generates a civil-rights/free-speech lawsuit on my behalf.
Is there any personal gain with Walter’s comments?
If this helps, Leroy… I’m not employed, I’m not seeking employment, and I doubt I’ll want or need to ever be employed again. I’m also not a member of (nor associated in any materially supportive way with) any of the Park’s environmental or “green” groups – although sometime in the future, if I can better afford to, I expect I’ll become a financial contributor. So in any material “personal” sense, the answer is clearly, “No.” I simply know a great deal about these decades-long, Forest Preserve roads issues and care about how they’re resolved.