Settlement  In the Matter of Mark Weissman

Date:	12/01/2008
Organization:	State Ethics Commission
Docket Number:	08-0019

Disposition Agreement

The State Ethics Commission and Mark Weissman enter into this Disposition Agreement pursuant to Section 5 of the Commission's Enforcement Procedures. This Agreement constitutes a consented-to final order enforceable in the Superior Court, pursuant to G.L. c. 268B, s. 4(j).

On November 15, 2007, the Commission initiated, pursuant to G.L. c. 268B, section 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Weissman. The Commission has concluded its inquiry and, on April 17, 2008, found reasonable cause to believe that Weissman violated   G.L. c. 268A.

The Commission and Weissman now agree to the following findings of fact and conclusions of law:

Findings of Fact

1. Weissman has served as an unpaid member of the Massachusetts Marine Fisheries Advisory Commission ("MFC") [1]  since he was appointed by the Governor in 1993. In his private capacity, Weissman is a retired publisher and statistician. He is also a former businessman and science textbook editor.
    
2. In 2001, Cape Wind Associates proposed to construct an alternative energy "wind farm" consisting of approximately 130 wind turbines in Nantucket Sound. In preparation for construction of the Cape Wind project ("the Project"), Cape Wind Associates sought numerous permits and approvals from state and federal authorities.
    
3. The Alliance to Protect Nantucket Sound ("the Alliance") is a non-profit environmental organization dedicated to the long-term preservation of Nantucket Sound. The Alliance was formed in 2001 and has been the central opponent of the Project.
    
4. Federal agencies have regulatory authority for most aspects of the Project because the proposed site for the Project is in federal waters. However, because the underwater electrical cable and power grid connections are within their jurisdictions, state and regional entities have regulatory authority over a portion of the Project.
    
5. The United States Army Corps of Engineers ("the Army Corps") initially led the National Environmental Policy Act ("NEPA") review [2]  for the Project. The review was conducted jointly with the Massachusetts Environmental Policy Act [3]  ("MEPA") Office and the Cape Cod Commission.[4]   The joint environmental review process involved several public comment hearings and the publication of consolidated reports coordinated among the three agencies.
    
6. At an MFC meeting in August, 2002, Weissman proposed that the MFC send a comment letter to the Army Corps regarding the Project. After a motion was made to accept the proposal, the MFC approved the motion unanimously. In a letter to the Army Corps dated August 15, 2002, the MFC expressed "dismay regarding the near exclusion of the Massachusetts Division of Marine Fisheries from the joint EIR/EIS scoping process."[5]  The letter also stated several objections to the Project, based on its likely effect on fish populations.
    
7. In 2003, Weissman began providing paid consultant services to the Alliance. That year, the Alliance paid Weissman approximately $6,750, a portion of which was payment for Weissman's expert testimony before the Massachusetts Energy Facilities Siting Board ("the Siting Board").[6]   In June, 2003, Weissman testified in opposition to Cape Wind Associates' petition for approval to construct and operate electrical transmission lines from the proposed wind farm to an onshore power facility. During his testimony, Weissman raised several issues regarding potential effects of the Project on area fish populations, which were the same issues raised in the August 15, 2002 letter to the Army Corps of Engineers from MFC, which letter predated Weissman's employment by the Alliance.[7]  
    
8. At an MFC meeting in October, 2004, Weissman made a motion for the MFC to send letters to the Atlantic States Marine Fisheries Commission [8] ("ASMFC") and the New England Fisheries Management Council [9] ("NEFMC") requesting formal review of the Army Corps' Draft Environmental Impact Statement ("DEIS") upon its release. The motion carried unanimously and letters were sent over the MFC chairman's signature on October 25, 2004. The letters expressed concerns regarding the sufficiency of data provided by Cape Wind Associates to the Army Corps and requested that the ASMFC and NEFMC conduct evaluations to assess the Project's potential negative impacts.
    
9. In November, 2004, the Army Corps released a 3,800-page DEIS that addressed federal, state, and regional environmental issues. The preliminary conclusion of the document was that the environmental, public health, and economic benefits of the Project would exceed the minor short-term environmental costs. According to Weissman, the DEIS was criticized by the EPA and the Department of the Interior.
    
10. In December, 2004, the Army Corps and the MEPA Office held a joint public hearing on the DEIS at the Massachusetts Institute of Technology campus in Cambridge, Massachusetts. Weissman and MFC chairman Mark Amorello testified at the hearing. Both introduced themselves as MFC members and stated their opposition to the Project. Weissman characterized the DEIS as "materially deficient" and voiced skepticism regarding the data used to determine the impact on fish populations. He also suggested alternate methods and data that he believed were more reliable than those used in the DEIS.
     
11. In January, 2005, the Alliance paid Weissman $3,637, a portion of which was payment for Weissman's meetings and phone calls relating to reviews of the DEIS and his drafting 25 pages of DEIS comments, which were based in large part on materials provided by the statisticians of the Division of Marine Fisheries, according to Weissman.
     
12. In February, 2005, the Cape Cod Commission held a public hearing on the DEIS at a middle school in Yarmouth, Massachusetts. Weissman introduced himself as an MFC member and criticized the DEIS. He stated that a more detailed review was needed to address the report's deficiencies.
     
13. Also in February, 2005, the Alliance submitted a response to the DEIS to the Army Corps, in which Weissman is recognized as one of the Alliance's experts.
     
14. Also in February, 2005, the Alliance paid Weissman $1,200, a portion of which was payment for Weissman's review of DEIS comments provided by other entities.
     
15. In 2005, the federal government shifted federal responsibilities for the NEPA review from the Army Corps to the United States Department of the Interior's Minerals Management Service ("MMS"). MMS determined that a new DEIS was required and separated the state and federal reviews.
16. In February, 2007, pursuant to the MEPA and local review processes, Cape Wind Associates submitted a Final Environmental Impact Report ("FEIR") to both the Massachusetts Executive Office of Environmental Affairs and the Cape Cod Commission.
     
17. At an MFC meeting in March, 2007, Weissman updated members of the MFC on the Project permitting process. He commented on details of the Project, including the environmental impact from the construction of turbines in shallow water and the size of construction vessels.
     
18. Also in March, 2007, Weissman testified at a Cape Cod Commission hearing regarding the FEIR. Weissman addressed the Commission during the time set aside for public officials and introduced himself as an MFC member. Weissman expressed concern over the project's impacts to marine resources and the Cape's fisheries. He also recommended that a supplemental FEIR be required, which the Massachusetts Division of Marine Fisheries also recommended, according to Weissman.
     
19. Also in March, 2007, Secretary of Environmental Affairs Ian Bowles announced that the FEIR adequately complied with MEPA, concluding the state and local environmental review of the project. Federal review of the Project remains ongoing.
     
20. In September, 2007, the Alliance paid Weissman $2,500, a portion of which was payment for Weissman's review of the FEIR.
     
21. In total since 2003, Weissman has received approximately $48,000 from the Alliance, approximately $8,000 of which has been in relation to the Alliance's efforts to oppose the Project. Of this $8,000, the Alliance has paid Weissman more than $2,000 for reviewing and formulating comments regarding joint environmental review documents published by the Army Corps, the MEPA Office, and/or the Cape Cod Commission. [10]
     
22. Weissman verbally discussed his consultant activities for the Alliance at MFC meetings.^[11]   However, at no time did Weissman make a written disclosure to the Governor, his appointing authority, of his paid consulting relationship with the Alliance.
     
23. As an unpaid member of the MFC, Weissman was at all times relevant a special state employee as defined by G.L. c. 268A s. 1(o)(1).
     
24. Section 4(a) of G.L. c. 268A prohibits a state employee, otherwise than as provided by law for the proper discharge of official duties, from receiving or requesting compensation from anyone other than the commonwealth or a state agency, in relation to any particular matter [12]  in which the commonwealth or a state agency is a party or has a direct and substantial interest.
     
25. Section 4(a) applies less restrictively to special state employees. A special state employee is subject to s. 4(a) only in relation to a particular matter (a) in which he has at any time participated as a state employee or (b) which is or within one year has been a subject of his official responsibility, or (c) which is pending in the state agency in which he is serving.
     
26. The environmental review process for the Project was a particular matter. The state had a direct and substantial interest in this particular matter.
     
27. Weissman participated as an MFC member in this particular matter by taking the following actions:
    
    a. In August, 2002, proposing that the MFC send a comment letter to the Army Corps regarding the MFC's exclusion from the NEPA scoping process;
    
    b. in October, 2004, moving that the MFC send letters to the ASMFC and to the NEFMC requesting formal review of the Army Corps' DEIS when released;
    
    c. in December, 2004, testifying about the DEIS at a joint public hearing of the Army Corps and the MEPA Office;
    
    d. in February, 2005, providing comments about the DEIS at a public hearing of the Cape Cod Commission; and
    
    e. in March, 2007, providing comments about the FEIR at a public hearing of the Cape Cod Commission.
     
28. By so participating as a state employee in the particular matter, Weissman is subject to s. 4(a) in relation to the environmental review process for the Project.
     
29. Weissman received over $8,000 as compensation from the Alliance for his services in assisting the Alliance's opposition to the Project. As detailed above, more than $2,000 of this amount was in relation to the environmental review process for the Project.
     
30. Therefore, Weissman violated s. 4(a). 
     
31. According to Weissman, he believed that his actions were proper because the interests of the Alliance were aligned with those of the MFC with regard to the environmental review process for the project. Weissman acknowledges, however, that his receipt of compensation from the Alliance in relation to the environmental review process for the Project was not as provided by law for the proper discharge of his official duties as an MFC member. [13] In addition, Weissman believed his actions were proper because he thought that the environmental review process was not a particular matter before the MFC; and therefore, he could receive compensation from a private party in relation to that particular matter. He now acknowledges that he was mistaken in that belief.
     
32. Section 23(b)(3) of G.L. c. 268A prohibits a public employee from knowingly or with reason to know acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person.
     
33. Section 23(b)(3) further provides that it shall be unreasonable to so conclude if the public employee has disclosed in writing to his appointing authority the facts which would otherwise lead to such a conclusion.
     
34. As described in paragraph 27 above, Weissman repeatedly participated as an MFC member in matters of interest to the Alliance while he had a significant private business relationship with the Alliance. Most of his participation as an MFC member in these matters occurred after the Alliance hired Weissman in 2003 to provide expert testimony in opposition to a Cape Wind Associates petition before the Siting Board. In addition, Weissman participated as an MFC member in these matters while he was paid a total of approximately $48,000 in exchange for consulting services that he provided to the Alliance. By so participating officially as an MFC member in matters of interest to the Alliance while having this private business relationship with the Alliance, Weissman acted in a manner which would cause a reasonable person, knowing all the relevant circumstances, to conclude that the Alliance can improperly influence the performance of his official duties.
     
35. According to Weissman, he believed that his discussions with MFC members and staff were sufficient to comply with the requirements of the conflict of interest law. However, Weissman acknowledges that because he did not make a written disclosure to the Governor, his appointing authority, of his paid consulting relationship with the Alliance, these discussions did not comply with the requirements of s. 23(b)(3) and, therefore, were insufficient to cure his s. 23(b)(3) violation.
     
36. Therefore, Weissman violated s. 23(b)(3).

Resolution

In view of the foregoing violations of G.L. c. 268A by Weissman, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the basis of the following terms and conditions agreed to by Weissman:

(1) that Weissman pay to the Commission $2,500.00 as a civil penalty for violating G. L. c. 268A s.s. 4(a) and 23(b)(3); and

(2) that Weissman waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.

[1] Pursuant to 322 CMR 1.00 et seq., the MFC has authority to regulate fishing methods and equipment; to establish catch size, species and number limits; and to issue fishing and aquaculture (fish farm) permits.

[2] 42 U.S.C. 4321 et seq., The National Environmental Policy Act (NEPA) requires federal agencies to prepare an Environmental Impact Statement (EIS) when considering actions that would have a significant impact on the environment.

[3] G.L. c. 30, sections 60-62H require state agencies to prepare an Environmental Impact Report (EIR) detailing the impact on the environment of all works, projects or activities conducted by them. Section 62G provides: "In the case of projects for which an environmental impact statement is required under the National Environmental Policy Act of 1969, draft and final federal environmental impact statements may be submitted in lieu of environmental impact reports."

[4] The Cape Cod Commission is a regional land use planning and regulatory agency created by an Act of the Massachusetts General Court and confirmed by Barnstable County voters. See Chapter 716 of the Acts of 1989, Chapter 2 of the Acts of 1990, and Barnstable County Ordinance 90-12.

[5] The "scoping process" is the initial step in the preparation of the EIS by a government agency. "As part of the scoping process the lead agency shall: Invite the participation of affected Federal, State, and local agencies…" See 40 CFR 1501.7. Scoping and public involvement may be satisfied by planning meetings, public hearings, and solicitations for comments.

[6] G.L. c. 164, s. 69H established the Energy Facilities Siting Board for the purpose of licensing the construction of major energy infrastructure in Massachusetts, including large power plants, electric transmission lines, natural gas pipelines and natural gas storage facilities.

[7] According to Weissman, he received no compensation from the Alliance whenever he spoke publicly regarding the Project.

[8] The ASMFC was formed by the 15 Atlantic coast states for the purpose of coordinating the conservation and management of fishery resources for sustainable use.

[9] 16 U.S.C. sections 1801-1884, The Magnuson-Stevens Fishery Conservation and Management Act establishes a U.S. exclusive economic zone between three and 200 miles offshore, and eight regional fishery councils to manage the living marine resources within that area. The NEFMC is one of these eight councils.

[10] The approximately $40,000 balance of payments was compensation for publishing the 2006 and 2007 Boater's Guides to Nantucket Sound, creating a water quality monitoring collaborative at UMass Dartmouth, and developing other Nantucket water quality projects.

[11] According to Weissman, the Director of Marine Fisheries and the Commissioner of Fish and Game attended these meetings.

[12] Section 1(k) of c. 268A defines "Particular matter" as "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property."

[13] See Edgartown v. State Ethics Commission, 391 Mass. 83 (1984) (Public employee prohibited from representing private citizens for compensation because his duties do not include representing or receiving compensation from private citizens, even where the interests of his public agency and the private citizens are aligned.)