SEU Oversight Board Authority Expired
There was some question around here last week about whether or not the SEU was acting within the law that created them. There was an allegation that their term had expired per statute. Here is the pertinent part of the law:
There is hereby created the SEU Oversight Board which shall, from passage of this Act until January 31, 2008, consist of all members of the Sustainable Energy Utility Task Force (“Task Force”) appointed pursuant to Senate Concurrent Resolution 45 from the 143rd General Assembly and Senate Concurrent Resolution 6 from the 144th General Assembly. By December 31, 2007 the Task Force shall recommend to the General Assembly the composition of the Board to serve after January 31, 2008.
So according to this, their term expired on January 31st, three and a half months ago. I spoke to an assistant to Senator McDowell and confirmed that, indeed, the authority was not renewed. On the recommendation of counsel, they have continued to operate as if they were still a legal entity. This may explain why they were unable to answer whether of not they were a public body in their last meeting. According to my source, they are continuing to meet in order to solicit input on how to structure the permanent SEU oversight board.
I contacted Tyler Nixon for comment (note to self, never ask a lawyer for a comment without specifying a maximum number of words). Mr. Nixon’s full comment is below the fold.
Senator Harris McDowell, and any other person knowingly and/or wilfully disregarding Del C. 29 Sec. 8059(e)(1), is unlawfully operating a rogue quasi-agency by purporting to hold meetings and make decisions dispositive of the Sustainable Energy Utility’s future, months after the former SEU Oversight Board’s authority expired.
There is absolutely no authority under Delaware law for any meetings or actions undertaken by any “SEU Oversight Board” after January 31, 2008. Any attempt by Senator McDowell or others to mislead the public into the belief that there is presently a validly-constituted and legally-operating SEU Oversight Board is nothing short of blatant fraud on the public.
Senator McDowell should be sanctioned by the Ethics Committee and the Attorney General needs to be notified.
Any attorney advising Senator McDowell or other former SEU Oversight Board members that they can meet or act under any color of law is also blatantly participating in a fraud on the public.
Any purported SEU counsel is being paid by public funds and has a fiduciary obligation both in that capacity and as a Delaware attorney to advise any individuals purporting to act as the SEU Oversight Board that there is no longer statutory authority for such actions, under present Delaware law.
In fact, because the SEU Oversight Board no longer has any statutory authority neither does any attorney have any legal standing to claim to be counsel to this Board, irrespective of Senator Harris McDowell’s lawless say-so.
I would urge any legislator or individual who perhaps may not be aware of this fraud, but is being duped by Senator McDowell and/or the former SEU Oversight Board’s purported counsel into participating in the illegal perpetuation of the SEU Oversight Board, to cease such actions and distance themselves from Harris McDowell and anyone else going along with his fraud.
Until such time as the legislature re-authorizes the SEU Oversight Board and makes it very clear how the Board is to be selected and confirmed by law, no one who has any respect for the rule of law would be involved with Senator McDowell’s activities concerning the SEU.
Editor’s note:Quote corrected at Mr. Nixon’s request.
Tags: Delaware, Energy and the Environment, FOIA, local Dems, Politicians, Politics, Pork
Geek –
This is an actual news story. I’m sending a copy to Aaron Nathans who has been covering this for the NJ.
Senator McDowell should be sanctioned by the Ethics Committee and the Attorney General needs to be notified.
I’m going to hold my breath and wait for the Ethics committee and/or the Attorney General to do anything.
Also – I can’t wait for Charlie Copeland (a guy who wants to be Lt. Gov.) to explain why he is a party to this criminal enterprise.
At the very least any actions taken while expired can be stricken or invalidated.
I know this is not what some of my friends here may want to hear, but I just spoke to Senator Copeland about all this, at length. I have to say he put any doubts I had about his role in this to rest.
He said he welcomes this scrutiny and that the Board should not continue to operate as Senator McDowell seems to think is now kosher. He shared my view/suspicions about Senator McDowell’s attempts to manipulate the SEU.
He said he and others GOP legislators on the Board are more than happy to see the brakes put on until the law is clear about how this Oversight Board is to be selected, confirmed, and empowered. Apparently they have been just as concerned about where this has been going.
It might be useful to obtain the Senate floor debate on SB 228. Copeland said he made his reservations very clear, especially against anything that would make the Board self-perpetuating.
Now, please don’t shoot the messenger.
Also, Copeland stated that the Board really should not have any legislators on it at all.
But, but, but… it’s all Copeland’s fault!
Yes, he made his intentions clear when I saw him in the last SEU oversight board meeting. He looked very unwilling to participate…. Wait a minute! No he didn’t!
Look I got no ax to grind on Copeland, but unless his strategy is to be late enough to the meeting to get nothing accomplished, he is part of the problem here. He was combative and defensive of the questions asked in that meeting and while he has been on the SEU tour (Delaware Nature Society, etc.) he has been combative and/or evasive according to attendees.
Also, Copeland stated that the Board really should not have any legislators on it at all.
Oh good, I guess he will be resigning, then. I await the letter of resignation. Hopefully there will be quorum long enough to submit it.
But the board no longer has authority to accept resignations. So either the board really is perpetual, or it must immediately vanish in a puff of logic.
So we now know Copeland can kiss ass when he needs to. Interesting.
He is running for Lt. Governor you know.
Granted that my conversation with Senator Copeland consisted of words. I will certainly be watching for his actions in the future re: SEU to be consistent with what he explained to me.
So Copeland is a member of the board, but opposes its existence as currently structured.
He doesn’t think legislators (including himself) should sit on the board, but there he is.
He thinks the structure should be changed, but is listed as a sponsor of SB 228, and voted for the bill without offering an amendment.
Can someone explain this to me?
Can open, worms all over the place.
I am working on getting a copy of the floor debate so Senator Copeland’s own words can be scrutinized. I probably should not have tried to recount our conversation so summarily.
Nonetheless, Harris McDowell is the catalyst for all this and is “running the show” his way, apparently no matter what Copeland or anyone else says or does.
That said, any legislator going along with McDowell’s machinations deserves to be equally excoriated, irrespective of party. Let’s all hope the House smacks down Senator McDowell when this all comes up in the chamber.
“immediately vanish in a puff of logic.”
It would be very nice to see that occur without litigation.
Maybe he just wants to see the SEU work and maybe he wants to make sure McDowell doesn’t do what it looks like he intends to do. Would it be better to achieve that by participating on by not participating?
Why, yes Dave, that would be better. Of course one would expect to see him make some motion about how the board is out of order or that the permanent board shouldn’t have legislators on it or something of that nature. He looked to be pretty staunchly defending the board in its current incarnation at the last meeting.
That makes me call B.S.
Has anybody here called A.G. Biden?
Man oh man. Copeland is just a twig borne on the shoulders of a mighty river isn’t he Dave?
He is a milkweed seed that drifted into the window of the SEU meeting and out the door. He is as nearly as light as a dream.
Copeland loves wind power, but not Blue Water Wind Power. He suspects that McDowell is up to no good with the SEU, but votes with McDowell on every SEU question.
He is either more clueless than Forrest Gump or more spineless than an amoeba.
I am begining to think that he is both.
I’m working on a letter, Rebecca. I hope Beau proves his mettle by taking a serious look at all this, not just the political once-over and done.
I wonder if the AG is legally authorized to investigate or prosecute alleged wrongdoing by state legislators.
I wonder what types of criminal charges could be brought. Sounds like Senator Copeland has all the sudden realized this could be problematic running for governor – I mean Lt. Governor – being part of an illegal group trying to kill the wind farm and set up a huge, multi-million dollar enterprise and make lots of money for themselves with cake jobs. I mean, did he just realize this “enterprise” had expired? What planet is the guy on? And being against the wind farm should do Mr. Copeland wonders in his race for the governor’s mansion. Maybe he could talk about creating jobs for the state in his campaign, or skyrocketing energy prices, a clean environment, national security, health care costs. LOL.
Absolutely, if a law has been broken.
If the SEU Oversight Board is a public board, with its members exercising sovereign power, then its members are State “officers.” If so, there is a substantial argument that under Article 15, section 5 of the Delaware Constitution the present Oversight Board members “hold-over” after January 31, 2008 until such time as their successors are appointed. That constitutional provision applies to both statutory and constutional officers. The only counter would be that the January 31 deadline was meant as the expiration date for the Board as an entity and not just the end of the terms of the initial members. However, it is hard to read the SEU statutory text this latter way. Perhaps Mr. Nixon could offer his own view on whether the constitutional presciption for “holding over” in Article 15 applies in this situtation.
Of course, the much, much bigger problem is that the Ineligibility and Incompatibility Clauses of Article 2, section 14 of the State Constitution preclude any present legislator from sitting as an officer or member on any “public” SEU Oversight Board in order to assist in the execution of the SEU statute.
AWESOME scooping, liberalgeek. This is what blogging is about.
I am against the forced implementation of the PPA between Bluewater and Delmarva. It’s a totally bad idea. Not because wind power is bad; because the agreement is bad. The status of SEU for non-compliance may or may not have an effect.
I noticed in SEU minutes that they touched on the issue of naming of the members, etc., in order to comply, but apparently nothing was ever finalized.
I have also experienced, in my weary association with state government (PA) that such legislatively-imposed deadlines are treated with a wink-and-a-nod. Nobody ever expects anyone to meet the deadline, and they are rarely enforced with any real strength. It is “business as usual”. I am wondering if this issue may flounder the same way. I am not saying this is how it should be; just saying this is what I have seen.
Great job on calling legislators out to adhere to their own rules.
Here is another question for Mr. Copeland. Who else attended your little meeting a year ago at the Charcoal Pit? The topic of discussion, what to do about violence in Wilmington. Was Tommie Little in attendance? Whose idea was it to have a “homeland charter school”, Mr. Copeland? Somebody has some splaining to do on this below the radar story.
Great work, LG. Tyler, fantastic analysis of the ramifications of the illegality of the board.
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McDowell is a total scoundrel. He actually KNEW that the group was meeting illegally and went full steam ahead as if no one would notice. And he was trying, it seems, to feather his nest visa an illegal entity.
What a scumbag. He should be removed from office.
At the recent SEU oversight board meeting that I attended as a citizen I raised objections to the process and was asked, publicly, while there was still a quorum, by Senator McDowell for some specific points of objection. I responded that one would be “I cannot accept that the incestuous nature of the board selecting its successor board was what was intended by SB 18” (the original SEU bill). Neither Senators McDowell or Copeland or Dr. Byrnes or any other board members responded to my concern except Senator McDowell who asked what I would suggest. I responded that I would prefer a commission sorting through nominees who would in turn send finalists names to the Governor who would in turn choose from that list and send those recommendations to the full Senate for confirmation. Not perfect but certainly some insulation and independence in the equation. I was told by Sen McDowell that my suggestion would be duly noted and did I have any other concerns. I responded in the affirmative and said there were myriad problems with the accountability and my previously expressed opinion (more than a few weeks ago) to Sen. Mcdowell’s staffer that I wasn’t comfortable with Legislators sitting on this board and that it was in danger of becoming a DSWA or DRBA. No one in that room voiced agreement with me and one of the Senators (Copeland I believe) said something (I must paraphrase here not having taken notes) that legislators sitting on these types of boards was quite common and would I remove them from non-profits and other boards. I responded that if the board were involved with little or no oversight in their selection of members to handle, directly or indirectly monies that I have do have a problem. Sen. McDowell than reminded me that I co-sponsored the original SB18 and spoke very “passionately” on the floor for its passage with utmost urgency. I did indeed but never imagined we would be force fed a self-perpetuating board that could result in a newly formed nepotistic entity nor that the SEU portrayed as a self-reliant and independent fiscally sound vehicle would be trying to access multi-millions in Regional Greenhouse Gas Initiative monies derived from Carbon Credit auctions. The report from the RGGI work-group consisting of overlapping SEU and RGGI group members (Copeland, McDowell, Thornburg and Byrnes) issued a report suggesting that 80% of the funds be given to the SEU despite the fact that the “bill of goods” I was sold guaranteed SEU financial independence and solvency without additional funds that could be escrowed, (as I suggested in my testimony to the RGGI worgroup) for a year until we sorted out consistency, value, and sustainability of funds with no harm to anyone.
John Kowalko
John – I appreciate your insight. The more I look back on that meeting the more frustrated I feel. I need to dig into the whole RGGI issue and follow the money, power and influence.
Perhaps I’ll give you a call and you can start me down the right path.
You witnessed those events and duly noted all involved SEU parties lack of substantive response I presume?? I believe you have my number. If you wish to replicate my comments to a post feel free to do so. I’ve decided that I shouldn’t condone behavior by silence.