Former state employee told to withhold insider information
By Gwendolyn Craig
The top lawyer for New York’s Commission on Ethics and Lobbying in Government has weighed in on a former Adirondack Park Agency staff member’s stymied attempt at submitting comments to his former employer.
In a March 9 letter to Walter Linck, the ethics commission’s general counsel Keith St. John said former state employees may submit public comments, but may “not cite non-public information acquired through their State service.”
Linck, a retired natural resource planner with the APA, was disappointed with the six-page letter. He continues to seek more clarity from the ethics commission, he said, as he hopes to provide the APA with additional comments in its second round of solicited feedback on a policy quandary.
The APA, charged with long-range planning for the 6-million-acre park, reopened a 50-year unanswered policy question: What constitutes a “material increase” of roads in wild forest? Wild forest is a land classification in the park that discourages motorized use.
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To answer that question, APA commissioners have been grappling with two others. They include, what the existing road mileage was in wild forest in 1972 when the APA’s leading policy document was adopted, and whether paths open to people with disabilities should be included in any “material increase” accounting.
The matter is a contentious one and has striking impacts no matter what APA commissioners decide. The outcome could lead to weakened environmental and wildlife protections by an agency charged with putting natural resource protection first. It could also lead to the closure of long-used roads in communities already facing economic and infrastructure challenges.
Linck worked at the APA for two decades and retired in June 2021. He submitted comments over the summer, asking the APA to consider past agency memos with staff interpretations of the policy. The APA and the state Department of Environmental Conservation had agreed to count roads accessible to people with disabilities in the mileage, Linck said.
APA Associate Counsel Sarah Reynolds wrote to Linck in August that his comments “appear to contain confidential information” and may violate post-employment restrictions. She said the agency would not consider them and referred Linck to the ethics commission.
Post-employment restrictions for state employees are listed in Public Officers Law. The statute contains a two-year restriction, which prevents “former state employees from engaging in activity or communications, or being paid for rendering services, that are intended to influence a decision or action by their former agency or to seek from their former agency any information that is not publicly available.” The statute also includes a lifetime bar, prohibiting one “from rendering services of any kind in relation to any case, proceeding, application, or transaction in which the former employee was directly concerned.”
St. John wrote to Linck that his comments “could reasonably be seen as a prohibited appearance before your former agency, reflecting an intent to influence agency decision-making, which the two-year bar is intended to prevent.”
The ethics staff believe “the post-employment restrictions generally do not prohibit a former State employee from responding to a public solicitation for written comments issued by their former agency,” St. John wrote. “However, when doing so, the former employee must not cite non-public information acquired through their State service.”
“This rule makes sense in the context of this discussion because citing information back to the agency that was initially acquired from the agency in the first place does not advance the public interest in providing the State with information it needs,” St. John concluded.
Linck is still unsure of what he can and cannot say. The documents he referenced in his comments “weren’t stamped top secret,” he said, and he never directly quoted from them.
Linck thinks his institutional knowledge, not just references to old agency memos, will be lost if he does not provide it to the board and to the public. It “is of value in public debate,” he told the ethics commission. He is asking for further clarification if he would be violating the ethics law by providing historical information and accounts and by referencing but not quoting certain documents.
He’s particularly anxious for an answer as the APA has asked the public for feedback again on the wild forest roads question. This time, it is on a new interpretation that would not count paths for people with disabilities in the road mileage and would give the APA the option of assessing roads on a case-by-case basis. Linck is preparing two versions of his comments–one he thinks must be accepted, while the other will reference more of his historical knowledge.
“I’ve been trying for months to get clear answers to this,” he said.
Emily DeSantis, communications director for the ethics commission, told the Explorer that “The Commission is steadfast in its commitment to bringing integrity, trust, and transparency to state government,” but that it is prohibited “‘from disclosing whether or not guidance has been requested or given.’”
“Persons receiving such informal advice may rely on that advice absent misrepresentation or omission of material facts to the commission and such communications with the commission shall be treated as confidential,” she added. DeSantis did not respond to the Explorer’s question about how such a matter as Linck’s could come before the commission’s board.
Please allow me to clarify that I’m only disappointed with one aspect of the letter. It’s important that top Commission staff have opined that ex-employees DO have the right to comment as I did (despite any two-year or lifetime “bans”) WHEN a State agency does request public comments on an issue. APA had intimidatingly suggested to me – without Commission support – that I did not. So that’s a win for all ex-employees in New York, and a win for the public because of how it might improve transparency and decision making in certain circumstances, and I’m grateful for that. Also, Commission staff obviously put a great deal of thought and effort into their response (it’s a long letter), for which I’m also grateful. I just also think that straightforward and truthful historical information (which admittedly, because of my employment, no or few others besides me may know) should be considered information that may be contributed by ex-employees to benefit decision-making, especially when it’s apparent to many, as in this case, that Agency staff are intentionally withholding critical information from the Board in yet another attempt to lead the Board to a desired decision. (To the judge in the recent Lake George herbicide case, this was quite apparent, and so on that very basis APA lost that case.) Again, I did not release relevant documents, nor did I quote them (I can’t), and no ex-staff or Board members I know who also know of this – or such – information I pointed to in my rejected comments consider any of it to possibly be “confidential.” Current staff have just decided to try make it that. For the Board’s benefit in their decision-making, I merely characterized and noted the simple EXISTENCE of documents in Agency staff’s possession that they are obviously being kept from knowing about – along with their important historical context. I’m still hoping for further clarification from the Commission, and I do think something more will eventually come from them.
All things done by a public employee are public knowledge are they not ? Then how could a former public employee get in trouble by saying something that was public knowledge when he was working. The new governor has the old governor’s same style political show transparency it would appear.