NY wind “code of conduct”: backdoor attempt to regulate municipal officials?

Prof. Patty Salkin of the Albany Law School (and Law of the Land blogger) has published a thought piece entitled, “New Code of Ethics for Wind Energy Companies Doing Business in New York: A Back-Door Approach to Regulating Municipal Ethics,” available at the Law School’s Governmental Law Center (which Prof. Salkin directs.).

The piece offers a critical review of the so-called Code of Conduct promulgated by New York State Attorney General Andrew Cuomo in late 2008. The Code of Conduct was a response to allegations of misconduct in the siting process by developers First Wind and Noble Environmental Power and municipal officials. While receiving considerable attention at the time of its release, the code has not been widely accepted by the wind development community, perhaps because it reads more like an enforcement order than a code of conduct; according to this blogger’s information, to date only First Wind and Noble have signed on.

Prof. Salkin writes:

While on its face, the Code is aimed at the conduct of wind energy companies and their employees (and in fact, only the wind energy companies are signatories to the voluntary Code), the reality is that this Code impacts not only the conduct of corporate employees, but through controlling corporate conduct it also impacts municipal officials in terms of their conduct, required disclosure and similar requirements on their family members. It is likely that the Attorney General recognized gaps in the manner in which municipal ethics are addressed at the state level and saw an opportunity to begin to fill in where the statutes fall short. In some areas covered in the Code, it is possible that the State Legislature has preempted the field of regulation. Further, in some instances there are inconsistencies between the new Code and existing statutes that could lead to confusion. Lastly, provisions in locally adopted codes of ethics enacted pursuant to the General Municipal Law may also address some of the items covered in the new Code.

The full article is here at the Government Law Center.

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