Published in the Maine Center for Public Interest Reporting
Some criticize timing of Adams' 'equity' deal with First Wind
AUGUSTA, Maine — While he was Maine's chief utilities regulator, Kurt Adams accepted an ownership interest in a leading wind energy company.
One month later, in May 2008, he went to work for that company, First Wind, as a senior vice president.
Adams was chairman of the Maine Public Utilities Commission for three years beginning in April 2005. Before that, he was the in-house counsel for Gov. John Baldacci, who appointed him to the commission.
It’s not clear how much the ownership interest — described as 1.2 million units of equity — that Adams received while still at the commission is worth, since First Wind has not put a value on the equity units in its Securities and Exchange Commission filings. The company said the units of equity are not the same as stock options.
A recent First Wind filing with the federal SEC for 2009 shows Adams’ $1.3 million compensation included $315,000 in salary, $658,000 in stock awards, $29,000 of “other” compensation and $315,000 in “nonequity incentives.”
First Wind constructs, operates and owns wind turbines across the country, including farms at Mars Hill and at Stetson Mountain. Two other projects are in the works for Maine in Oakfield and Rollins Mountain in Lincoln.
Adams said that at the time they were awarded to him, the equity units — which he called “stock” in an interview with the Maine Center for Public Interest Reporting — had “no value at all” and therefore shouldn’t fall under any state laws that bar improper gifts to public officials.
Under state law it is a criminal violation if a “public servant … solicits, accepts or agrees to accept any pecuniary benefit from a person if the public servant knows or reasonably should know that the purpose of the donor in making the gift is to influence the public servant in the performance of the public servant’s official duties or vote, or is intended as a reward for action on the part of the public servant.” The statute also applies to anyone who “knowingly gives, offers, or promises any pecuniary benefit” for the purposes of influencing a public official.
Adams said he avoided any conflict of interest. “I recused myself from anything related to First Wind from when I accepted employment to when I left. I followed the statute by the book, told my employer and my colleagues.” Adams said he faced no conflicts in the period before his departure announcement, when he was negotiating his contract with First Wind. Those negotiations, he said, were conducted over a very short period of time.
“There was no property interest granted while I was at the commission that I received,” said Adams, adding that he never did First Wind any favors while he was at the commission. “Those stock options, the grant date is on [April] the 16th, but there’s no value at all that accrues to you until one year after you work.”
First Wind’s attorney, Paul Wilson, said that the award to Adams “had a prospective value that was unrealizable until after it had vested, which was about a year.”
“If he had never started work,” said Wilson, “he would have had something of no value, period.”
First Wind spokesman John Lamontagne said, “At no time did First Wind seek benefits from Mr. Adams when he was chairman of the PUC. First Wind did have interactions with the PUC in the regular course of our business.”
But at least one government watchdog group says the equity units awarded to Adams while he worked at the commission pose a problem.
“This is sort of like a lawyer coming into a courtroom, saying, ‘Hey, here’s a bunch of stock in my firm’ and a judge taking it,” said David Lavinthal, spokesman for the Center for Responsive Politics in Washington, D.C. “That judge can recuse himself all he wants from the trial in which that lawyer is a party, but the question is, is that an appropriate transaction?
“These things that are being given, they would at some point have value; is there any question in anyone’s mind at some point they will have value?” Lavinthal said.
On page 140 of First Wind’s March 26, 2010, SEC filing, the company sets Adams’ “vesting commencement date” for the equity units at April 16, 2008, the date Adams said he signed an employment contract with First Wind — while he was still PUC chairman. In the interview with the Maine Center for Public Interest Re-porting, Adams also described the equity units as part of the “overall compensation package” included in his employment contract with First Wind.
Adams said he signed the contract and got the equity units while he was still at the commission. But in a 2008 First Wind “S-1” filing with the SEC, the company states twice that Adams signed that employment contract a month later, on May 19, 2008 — after he left the commission.
“I can’t tell you why it was dated then,” said Adams. “The S-1 is not something I’m in charge of at First Wind. The securities filings are the province of the legal department.”
Wilson, head of the legal department at First Wind, said the May date “is just a clerical error. It was before my time. I don’t know how it got in there.”
First Wind’s interests
While First Wind was not a state-regulated utility, its interests came before the PUC in a variety of ways.
Construction of transmission lines with the capacity to connect wind energy from Maine’s rural reaches to densely populated regions to the south can happen only with PUC approval. And that’s a matter of crucial importance to First Wind, which makes clear in its 2008 press release announcing Adams’ hiring that it valued his PUC experience as a way to get the company what it needs.
“We are very excited to welcome Kurt to our team, and we know that his immense experience will help advance the transmission efforts for our projects across North America,” said Paul Gaynor, president and CEO of First Wind. “Through his most recent work as chairman of the Maine Public Utilities Commission, Kurt has a great working knowledge of the issues facing the wind industry.”
First Wind’s press release pointed out the qualifications Adams brought from his work at the PUC. “He also sited and approved infrastructure including electricity delivery and transmission.” Adams, First Wind wrote, “will primarily be responsible for the oversight and implementation of transmission planning for all of First Wind’s operating and development projects.”
Adams’ tenure as PUC chairman coincided with a major initiative by the state to develop alternative energy resources, especially wind. Along with other New England states, Maine set an ambitious goal for alternative energy production over the next two decades and established economic incentives for that production. That has led both to accelerated growth in Maine’s wind energy sector and bottlenecks in a transmission system designed to carry far less energy than wind power producers hope to generate.
In December 2007 — four months before Adams signed on for the First Wind job — the PUC intervened in a case that directly involved First Wind.
ISO-New England, the regional transmission organization that moves electricity from producers to consumers in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont, had disqualified First Wind’s Stetson Mountain project in Washington County from selling its power in an ISO-administered auction that held the promise of hefty financial returns for participating power generators. ISO officials had determined that the power being offered by Stetson would encounter a transmission problem in an overloaded transmission system and was therefore not a reliable source for inclusion in the auction.
The PUC tried to come to Stetson’s rescue and filed an after-deadline protest of ISO’s disqualification of Stetson. The PUC’s protest with the Federal Energy Regulatory Commission declared ISO’s ruling to be “inconsistent with Maine’s policy to promote renewable generation and reduce greenhouse gases. Further, the dis-qualification may discourage other renewable generators that may be seeking to locate in Maine.”
It was a strange move for the PUC, said Greg Williams, a Washington, D.C., attorney who has worked for FERC and represents the interests of utilities — including Maine power generator the Houlton Water District — before the commission.
“In a word, it is quite unusual to see the PUC step in on behalf of a single entity,” said Williams. “The PUC weighed in, filed a late intervention, pretty unusual, said it was real important that the New England ISO essentially give these guys a break and let them participate in that forward auction.”
The PUC’s protest filing — which was rejected by the federal agency — was written by a staff attorney who works under Adams.
Adams said he doesn’t remember the Stetson filing. “It’s not ringing a bell,” he said.
NY and First Wind
First Wind has faced questions about its ethics before. On July 15, 2008, New York Attorney General Andrew Cuomo announced an investigation into First Wind and Connecticut-based wind energy company Noble Environmental Power LLC.
Cuomo’s press release stated: “Subpoenas were served on Newton, Massachusetts-based First Wind (formerly known as UPC Wind) and Essex, Connecticut-based Noble Environmental Power, LLC. They are part of an investigation into whether companies developing wind farms improperly sought or obtained land-use agree-ments with citizens and public officials; whether improper benefits were given to public officials to influence their actions, and whether they entered into anti-competitive agreements or practices.”
Cuomo said the investigation was a response to “numerous complaints regarding the two companies from citizens, groups and public officials in eight counties alleging improper relations between the companies and local officials and other improper practices.”
The investigation did not result in charges against the companies. Instead, Cuomo used it as leverage to establish a code of conduct for wind energy companies operating in New York. That code, adopted three months later and signed by the two companies, prohibits conflicts of interest between municipal officials and wind companies.
Adams said there were no improper relations between him and First Wind while he was head of the PUC. He said he was the one who called First Wind about going to work with them because he had a conflict as the head of the PUC. The commission was set to deliberate over the massive power line expansion proposed by Central Maine Power — and that power line, said Adams, “is literally going to be built behind my house.”
David Farmer, Gov. Baldacci’s deputy chief of staff, said, “The governor believes that Kurt took appropriate precautions during his final days at the PUC to make sure that no conflict developed concerning First Wind. If First Wind had had business before the PUC, the governor believes Kurt would have appropriately removed himself from the matter.”
Tom Welch, a private attorney in Portland who was chairman of the PUC from 1993 to 2005, said that in the commission’s work, “the issue of transparency is pretty important.”
“The way I thought about it is that certainly you don’t want to create a situation in which there is an actual conflict between your own financial interests or those of your family and the public interest you’re supposed to be serving. One of the important things about being in a position like chairman of the Maine commission is that it is not necessarily enough for your decisions to be fair; they need to be perceived as fair — avoiding situations where there could be a perception of conflict, whether or not there is an actuality of conflict.”
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