AUGUSTA – Some environmental lawyers are questioning why the state Attorney General’s Office has not formally looked into whether Darryl Brown is eligible to be commissioner of Maine’s Department of Environmental Protection.

Gov. Paul LePage appointed Brown, who owns an engineering and land-use planning firm that helps developers get permits from the DEP. To comply with state ethics laws, Brown has removed himself from any of his company’s business before the department.

But Steve Hinchman, a lawyer for the Androscoggin River Alliance, filed a petition Feb. 7 — five days after the Senate confirmed Brown’s nomination — asking the U.S. Environmental Protection Agency to investigate whether Brown is eligible for the job.

According to the federal Clean Water Act, anyone who in the two years before an appointment earned at least 10 percent of their income from projects permitted under the act may not lead the department that administers it.

Last week, the EPA issued a letter to Brown requesting that the pertinent financial information be submitted in writing by April 15.

The same restriction exists in Maine law, and although Hinchman provided a copy of his petition to the Attorney General’s Office, no action has been taken.

“We went to the EPA because they were an independent arbiter and we had some confidence that they would be precise and professional about this conflict issue, whereas everybody in Maine has been sort of willing to stick their head under a rock and ignore it,” Hinchman said. “It’s the AG’s job to enforce Maine statute, and the AG looked at this and declined. … They could have, at any point, intervened and asked Commissioner Brown to report on whether or not he has a conflict.”

Only members of the Legislature, the governor’s office or state agencies can request official opinions from the Attorney General’s Office. None has done so.

“The silence by the state — the governor’s office and the Attorney General’s Office — is surprising and disconcerting,” said Sean Mahoney, a lawyer who is director of the Conservation Law Foundation of Maine.

His group testified neither for nor against Brown during his confirmation hearing before a legislative panel in January.

The petition to the EPA says Brown’s firm, Main-Land Development Consultants, has done considerable work that falls under the parameters of the law, Mahoney said.

“It surprises me that the Attorney General’s Office hasn’t addressed this in writing,” he said. “They don’t report to the governor’s office, they represent the people of the state of Maine.”

On Wednesday, the Attorney General’s Office confirmed that it has not issued a written opinion on the matter. No one from the office was available to say late Thursday afternoon whether anyone has briefed the governor’s office about Brown.

“The vetting process of Commissioner Brown involved reviews of tax, references and background information,” Adrienne Bennett, LePage’s press secretary, said in a written statement. “The (Maine) statute did not get considered or come up throughout the entire confirmation process.”

The administration became aware of the issue concerning Maine law when Hinchman filed his petition Feb. 7, according to the governor’s office.

Legislative leaders became aware of the potential conflict with Maine law after Brown was confirmed.

House Speaker Bob Nutting, R-Oakland, said Brown and another member of the administration met with him and Senate President Kevin Raye, R-Perry, about a week ago.

“They made us aware of the fact that this might become an issue, and at that time the commissioner assured us that he was convinced this did not pertain to him,” Nutting said. “We didn’t talk about getting an opinion from the AG’s office. If there’s a problem, it would contradict what the commissioner told us.”

Mahoney, of the Conservation Law Foundation, said Brown actually may be eligible for the job, but there’s enough evidence to raise doubt.

“I would think that it would benefit everybody involved to have a clear understanding of what the attorney general’s interpretation of this is and what the Attorney General’s Office is doing in connection with this,” he said.

Rep. Bob Duchesne, D-Hudson, who serves on the Environment and Natural Resources Committee that endorsed Brown’s nomination, agreed.

“I’ve got to think that if he’s not over the line, he’s probably pretty close to it, and it deserves a look,” Duchesne said.

Hinchman said it was “mind-blowing” that no attorney — Brown’s own or one serving in the Legislature, the governor’s office or the Attorney General’s Office — had raised the issue after looking at state law regarding the job description.

“You must have had 30 or 40 attorneys miss this,” he said.

MaineToday Media State House Writer Rebekah Metzler can be contacted at 620-7016 or at:

rmetzler@mainetoday.com

 

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