Dept. of Energy's Cathy Zoi: Still Flouting the Law, Still Stonewalling the Investigation (PJM Exclusive)
From Tuesday's Energy & Environment Daily story, "Lawmaker ownership in BP, Transocean, Halliburton stirs controversy" (subscription required):
At least two dozen lawmakers own investments in the three companies tied to the Gulf of Mexico oil spill as Congress investigates the disaster and considers reforms.
"This is a serious conflict of interest," said Craig Holman, government affairs lobbyist for Public Citizen, a watchdog group. "Only Congress exempts [itself] from this type of conflict of interest.
"They should not be making decisions that affect their own personal well-being," Holman added.
Documents obtained from the Department of Energy and elsewhere appear to present a prima facie case of a senior Obama administration official, Assistant Secretary of Energy Efficiency and Renewable Energy Cathy Zoi, participating substantially in decisions impacting companies in which she is heavily invested. This flouts ethics requirements and would be a violation of U.S. criminal law.
The Department of Energy has yet to provide additional requested documents regarding Zoi. Even more troubling, the designated ethics officer has so far refused to even acknowledge the request for records she is required by law to provide the public.
Ms. Zoi's conflicts of interest have been reported previously at PJM. I also note her conflicts and involvement in questionable Obama administration activities in Chapter 3 of my new book (Power Grab: How Obama's Green Policies Will Steal Your Freedom and Bankrupt America). That chapter is titled "Van Jones Was No Accident: The Obama Administration's Radical 'Green' Activists."
In the financial disclosure filed by Zoi (former CEO of Al Gore's pressure group Alliance for Climate Protection), Ms. Zoi attests that she and her husband have divested themselves of numerous utility and other energy-related company stock, for the obvious ethical and appearance problems of holding such assets while serving as a senior official in the Department of Energy.
Yet, as I have learned through independent sources, Ms. Zoi is not recusing herself broadly as would seem to be required. She remains deeply involved in developing and implementing policies that directly impact the interests of companies in which she and her husband maintain large holdings.
The Freedom Foundation of Minnesota has also kindly directed me to Zoi's direct advocacy supporting one of these companies. This comes in the rather inescapable form of testimony to Congress, where she championed a major new program that would directly benefit the company for which her husband works -- "green window" vendor Serious Materials. The Zois maintained ownership of 120,000 shares in Serious Materials -- previously obscure, but now an administration favorite -- as well as stock options.
In her financial disclosure, however, Zoi vowed to recuse herself from “[participating] personally and substantially in any particular matter that has a direct and predictable effect on the financial interest” on Serious Materials or the Swiss "smart meter" producer Landis+Gyr, without obtaining a waiver first.
This is as a condition of her employment with the Obama administration, but also to be in compliance with the criminal code.
Although the DoE's ethics officer has still not responded, through other means I have obtained documents indicating Ms. Zoi has not recused herself from relevant policies. I await DoE's documents on the matter.
Zoi's congressional testimony, however, seems to make that point moot. In her testimony, Zoi advocates appropriation of millions of taxpayer dollars to schemes from which Serious Materials benefits both directly and indirectly. A major component of "green retrofitting" is replacing a building's windows, which is Serious Materials' business. In a posting on their website, Serious Materials specifically praises the "stimulus" bill and its largess, something promoted with equal zeal by Zoi in her testimony.
In fact, Zoi specifically calls out her role and her office's efforts:
I consider it an honor to lead the administration’s efforts to advance and deploy energy efficiency and renewable energy solutions at this historic time.
As you know, one of the best opportunities for energy efficiency is right in our own homes. Home energy retrofits can be a win-win-win. Consumers can win by cutting their utility bills and saving money, while getting a healthier, more comfortable living space for their families. Communities, employers, and employees can win by creating good jobs in the retrofit industry and at manufacturers that produce energy efficiency products, spurring the local economy and putting people back to work. ...
Retrofitting millions of American homes may truly transform energy consumption throughout the Nation. It may also put people to work in good, domestic jobs while saving Americans money and enabling significant contributions toward GHG emissions reduction targets.
Other sections of her testimony, titled "DEPARTMENTAL RETROFIT SUPPORT" and "CURRENT PROPOSALS," tout other such wealth transfers that will directly and indirectly benefit Serious Materials through the Homestar program proposal -- a proposal in which Zoi was given a driving role.
The legal prohibition against Zoi violating her vow of recusal, 18 U.S.C. § 208 "Acts affecting a personal financial interest," states in pertinent part:
(a) Except as permitted by subsection (b) hereof, whoever, being an officer or employee of the executive branch of the United States Government ... participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to his knowledge, he, his spouse, minor child, general partner, organization in which he is serving as officer, director, trustee, general partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest --
Shall be subject to the penalties set forth in section 216 of this title.
The breadth of the prohibition reveals the statutory intent to ensure that even the remotest possible conflict is avoided by responsible officials, as do those stiff penalties for violating that provision. Under 18 U.S.C. § 216 "Penalties and injunctions," the statute states:
(a) The punishment for an offense under section 203, 204, 205, 207, 208, or 209 of this title is the following:
(1) Whoever engages in the conduct constituting the offense shall be imprisoned for not more than one year or fined in the amount set forth in this title, or both.
(2) Whoever willfully engages in the conduct constituting the offense shall be imprisoned for not more than five years or fined in the amount set forth in this title, or both.
(b) The Attorney General may bring a civil action in the appropriate United States district court against any person who engages in conduct constituting an offense under section 203, 204, 205, 207, 208, or 209 of this title and, upon proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty of not more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater. The imposition of a civil penalty under this subsection does not preclude any other criminal or civil statutory, common law, or administrative remedy, which is available by law to the United States or any other person.
(c) If the Attorney General has reason to believe that a person is engaging in conduct constituting an offense under section 203, 204, 205, 207, 208, or 209 of this title, the Attorney General may petition an appropriate United States district court for an order prohibiting that person from engaging in such conduct. The court may issue an order prohibiting that person from engaging in such conduct if the court finds that the conduct constitutes such an offense. The filing of a petition under this section does not preclude any other remedy which is available by law to the United States or any other person.
Regarding public access to any such waivers it provides, the DoE's ethics officer has an obligation under 18 U.S.C. §208d and the Ethics in Government Act:
(d) (1) Upon request, a copy of any determination granting an exemption under subsection (b)(1) or (b)(3) shall be made available to the public by the agency granting the exemption pursuant to the procedures set forth in section 105 of the Ethics in Government Act of 1978.
My original request to that officer pursuant to this obligation, dated May 11, 2010, sought "copies of all relevant applications and determinations submitted by and/or provided to or denied Assistant Secretary of Energy for Energy Efficiency and Renewable Energy Cathy Zoi."
My May 14, 2010, FOIA request to the DoE sought:
1) Schedules, calendars and logs produced by or for Assistant Secretary Cathy Zoi;
2) Notes produced by Cathy Zoi;
3) Email, letters, and/or other communications sent or received by Cathy Zoi (including attachments) which reference, cite, allude or relate to:
a) "smart meters" or "smart metering"
b) Landis & Gyr
c) Serious Materials
d) Alliance for Climate Protection
e) Repower America
f) Climate Protection Action Fund
h) "green jobs",
i) "ethics," "recuse," "recusal," or
j) "FOIA" or the Freedom of Information Act; and
4) Travel records pertaining to Cathy Zoi.
DoE has yet to provide the documents under FOIA. More troubling, the designated ethics officer has also failed to even acknowledge my request for Zoi's waivers requested and/or granted, or a followup reminding her of the request and her responsibilities under the Ethics in Government Act.
When we receive responsive documents, however DoE ultimately forces us to obtain them, they will shed light on the gravity of Ms. Zoi's Serious Materials conflict and that arising out of her ownership of $500,000 in “founders shares” in Landis+Gyr on top of between $15,000 and $50,000 in ordinary shares.
For now, we await DoE compliance with the FOI Act, the Ethics in Government Act, and otherwise -- as with the attorney general, now that we are publicizing this matter -- 18 U.S.C, the criminal title of the United States Code.
I want to thank the Freedom Foundation of Minnesota for also directing me to certain information that I am owed but still have not been provided by DoE's designated ethics officer.