AUGUSTA – Soon after the LePage administration became aware of a Maine law that might make Darryl Brown ineligible to serve as commissioner of the Maine Department of Environmental Protection, top officials approached the Republican legislative leadership and discussed the possibility of changing it.

And though the Attorney General’s Office issued no formal, written opinion on the issue until last week, documents obtained under Maine’s Freedom of Access law reveal representatives had been consulting with DEP officials, the administration and Brown from nearly the first day the issue surfaced on Feb. 7.

Everyone — from Democrats who scrutinized Brown’s nomination to those who vetted Brown for Gov. Paul LePage to the Attorney General’s Office — failed to sufficiently review the state law surrounding the top DEP post.

The law says that because Maine has permitting authority under the Clean Water Act, a person may not serve as commissioner if too much of his or her income in the prior two years came from permit holders or applicants.

It was not until days after Brown was confirmed, and sworn in, that environmental attorney Steve Hinchman filed a petition with the U.S. Environmental Protection Agency questioning Brown’s eligibility under federal law as well as the near-mirror image Maine law.

He also sent the complaint to LePage and Attorney General William Schneider.

Media coverage of the issue was limited to the potential conflict-of-interest under federal law, until MaineToday Media reported similar language in Maine law might make Brown ineligible.

Federal law provides flexibility if income becomes an issue, allowing recusal or delegation of certain permitting powers. But the Maine law lacks such a provision.

Brown, the sole owner of an environmental consulting firm, was forced to resign as commissioner last week after his attorney determined his client “may” have been close to the income threshold. Based on that information, Schneider said unless Brown was willing to submit his company’s financial records for scrutiny, it appeared he was “unqualified” to serve under Maine law.

Despite evidence that both the LePage administration and Schneider’s office knew Brown was potentially ineligible, neither office investigated the situation. Instead, they were satisfied to rely on the preliminary inquiry conducted by the EPA and, for a time, Brown’s word that he was, in fact, eligible.

According to recent interviews with House Speaker Bob Nutting, R-Oakland, and Senate President Kevin Raye, R-Perry, top LePage officials met with them in late February to inform them a Maine law might pose a problem for Brown and initiated a discussion about the possibility of changing the law.

Both Nutting and Raye dismissed that as an option, they said.

“Kevin and I let the people from the governor’s office know that there was only one thing that the commissioner could do if he found out that he was not able to serve based on the law and that would be to resign,” said Nutting, referring to the meeting with Dan Billings, LePage’s chief legal counsel, and Kathleen Newman, LePage’s deputy chief of staff.

“I remember the whole notion of changing the law, for both Bob and I, that just grabbed us wrong,” Raye said. “It was sort of a gut reaction thing, that, OK, well, if in fact there is some legal impediment to him being there, perhaps that’s a legal impediment that ought not to exist, but would it be seemly to change the law for the sitting person?”

Nutting and Raye both said they were not asked to change the law at that time, but that Billings and Newman raised it as a possibility.

LePage’s office declined interview requests for both officials.

Last week, during an impromptu news conference, LePage said he had never asked legislative leaders to change the law while Brown was still in office. He also said he never received an informal consultation from the AG’s office, but then admitted that after Brown was in office he did speak with Schneider about the issue.

Previously, neither the LePage administration nor Schneider’s office would comment on whether they had discussed the potential ineligibility of Brown.

But an email sent the morning of Feb. 8 revealed a top official in the AG’s office had already been in contact with Brown.

“I have also given some preliminary advice to Patty (Aho) and Darryl (Brown),” wrote Jerry Reid, chief of the Natural Resources Division in the AG’s office, to his boss, Schneider, at 8:38 a.m. on Feb. 8. Aho is deputy commissioner at the DEP.

By the next week, Janet McClintock, an assistant attorney general, told Reid she had begun researching the state’s conflict-of-interest law.

On Feb. 16, top officials at the AG’s office met with Schneider to discuss “a DEP issue,” according to an email meeting notice. Two days later, Reid sent Billings, LePage’s counsel, an email acceptance for a meeting at the governor’s office. The subject of the meeting, according to the correspondence, was a “complaint concerning Commissioner Brown.”

The meeting between members of the AG’s office and the LePage administration, including Brown, was Feb. 23.

It was Feb. 24 when Billings and Newman met with Nutting and Raye to inform them about the potential issue and discuss their options.

About two weeks later, Nutting and Raye met again to discuss the issue, this time with Brown and Billings.

Brown told the Republican leaders that he was eligible to serve.

“He assured us that he, or he and his lawyer, had looked at the law and he didn’t think it applied to him,” Nutting recalled.

Raye said, “He seemed to feel a degree of confidence that he was OK.”

After the news of his resignation broke, Brown said he had “obviously” been wrong when he had dismissed the idea he might be ineligible.

On March 17, the EPA informed Brown it would be opening a preliminary investigation examining the potential conflict-of-interest.

Records from the AG’s office show there was regular communication with Brown and the administration on the issue.

Schneider wrote to colleagues on March 28 that he had just spoken with Brown about “his situation.”

The office was assisting Brown with the EPA inquiry, and Schneider told Brown his response to the federal government “should come through this office.”

That same day, AG officials met with Billings, from LePage’s office, to discuss Brown.

In early April, House Democrats formally asked Schneider to investigate Brown’s eligibility. Schneider declined, publicly saying it would be “inappropriate” because he was assisting Brown with the EPA inquiry.

An internal email reveals that AG officials were already anticipating information from Brown and his attorney that would provide an answer to the looming question of his eligibility.

“The bottom line is, we’re waiting to get the records,” wrote Reid to a colleague in the AG’s office. “We can’t offer any thoughts until we have them and once we have them, this can be resolved.”

When Schneider finally did publicly weigh in, it appeared to catch Brown and the administration by surprise.

“The attorney general felt compelled to get the letter out, a huge disappointment for me. I don’t like to do business that way,” Brown said last week.

Samantha DePoy-Warren, a DEP spokeswoman, said the AG’s public decision was “a mystery to us in the (DEP) and the governor’s office as well.”

LePage announced last week that he would like to change the Maine law, after Brown was forced to resign, although he has acknowledged he learned about it in early February. He argues now that it was a poorly written law.

He also said last week he could not eliminate the possibility of Brown being reappointed as DEP commissioner if the law is changed.

 

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

[email protected]