Jessica M. Karmasek Apr. 27, 2011, 2:17pm
AUGUSTA, Maine (Legal Newsline) - Maine Attorney General William Schneider says the commissioner of the state's Department of Environmental Protection is unqualified to serve because of a conflict of interest with his private business.
The attorney general says questions about Darryl Brown's potential disqualification arose shortly after his recent appointment and confirmation.
At issue is Brown's income from Main-land Development Consultants Inc., which does site work for developers who need environmental approval.
Brown's personal attorney, Clint Boothby, wrote to both the Attorney General's Office and the U.S. Environmental Protection Agency on Friday after doing his own evaluation of Brown's income the preceding two years.
In his letter, Boothby expressed concern about the potential damage to Main-land Development's business interests from the public disclosure of its client list and revenue information, and questioned whether such records would become part of the public domain if submitted to the Attorney General's Office for its review.
He stated that although "Commissioner Brown's income is not derived directly from a permit holder... the fact that income from permit holders is received by Main-land may trigger the 10 percent conflict threshold."
Boothby asked if a conflict of interest under Maine law does exist, whether Brown may continue to serve as commissioner.
In a letter to Brown dated Tuesday, Schneider explained that documentation related to Brown's income would become subject to Maine's Freedom of Access Act if submitted to the Attorney General's Office for review and that such records are presumptively available for public inspection.
The attorney general also advised that if Brown has a conflict, as suggested by his lawyer, that he would be precluded from serving as DEP commissioner under Maine statute.
"If in fact such a conflict exists, it would undermine your legal authority to act on any matter coming before you as commissioner," Schneider wrote.
Schneider said Brown must either produce documentation showing the absence of a conflict or take other action to resolve the matter.
Gov. Paul LePage, in light of the attorney general's letter, announced on Wednesday that he will move Brown from the DEP to the State Planning Office. Brown, he said, has accepted the position of office director.
The governor also has sent a letter to members of the state's Board of Environmental Protection requesting all information related to their individual sources of income from 2009 onward.
"Regrettably, this step is required to allow me to meet my constitutional obligations to faithfully and equitably execute the laws," LePage said in a statement.
LePage said he intends to submit legislation that, going forward, will allow qualified and experienced people to serve the State. As noted by the attorney general, while federal law allows potential conflicts to be addressed through recusal and delegation, such flexibility is not allowed by current state law, the governor said.
"It is unfortunate that Maine law is so inflexible that it can be read to prevent good people from serving. This is another example of the costs of Maine going beyond federal standards. I have discussed this issue with legislative leaders and am pleased that there is support for legislation to fix this problem," he said.
From Legal Newsline: Reach Jessica Karmasek by e-mail at email@example.com.