Town of Howard wind court case: Local official not removed from office

While New York Attorney General Andrew Cuomo considers allegations of impropriety in the context of wind farm siting, the courts are addressing the issue as well.

In an appeals court decision, a member of the Town Board of the Town of Howard (Steuben County) was not removed from office after a resident alleged improper behavior in the approval of an Everpower wind project.

The case, In The Matter of Gerald S. Hedman, et al. v Town Board of Town of Howard, Howard Wind, LLC, Everpower Global Corporation, Town Planning Board of Town of Howard and William O. Hatch (1393 Tp 08-00986, Nov. 21, 2008), was decided by the Supreme Court of New York, Appellate Division, Fourth Department.

Petitioners in the case commenced an Article 78 proceeding seeking, among other things, removal of William O. Hatch as a member of respondent Town Board of Town of Howard (Town Board) pursuant to Public Officers Law § 36. According to petitioners, Hatch had attempted to conceal his relationship with respondent Everpower Global Corporation (Everpower) and disregarded a conflict of interest that arose when he voted to approve a wind energy facility proposed by Everpower that included a wind turbine on Hatch’s property.

The Supreme (trial) Court transferred to the Appellate Division that part of the petition seeking Hatch’s removal from the Town Board and dismissed the remainder of the petition. The lower court’s dismissal was not before the appeals court.

The appeals court noted that

removal of an official from office under Public Officers Law § 36 “generally will not be granted absent allegations of self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust[,] . . . [and a]llegations of minor neglect of duties, administrative oversights, or violations of law . . . do not, in general, warrant removal.”

The court determined that the sole remaining petitioner, Gerald S. Hedman, failed to establish that Hatch had an actual conflict of interest that would warrant his removal as a Town Board member.

Hedman’s evidence had consisted solely of Everpower’s proposal for a wind energy facility identifying Hatch as a proposed participating landowner on whose property a wind turbine would be located. Hatch, in contrast, established that he had not entered into any agreement with Everpower with respect to the wind turbine at the time of his vote on the proposal, and petitioner presented no evidence to the contrary. The court found, then that on the record before the court it cannot be said that Hatch was affected by a conflict of interest by virtue of his vote in favor of Everpower’s proposal for a wind energy facility.

The court also concluded that petitioner’s allegation that Hatch intentionally concealed his relationship with Everpower was based on pure speculation and so entitled to no evidentiary weight.

Lastly, the court found that the alleged impropriety of Hatch in failing to make a public disclosure of the potential conflict of interest did not warrant his removal as a Town Board member (see Public Officers Law § 36).

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