Did attorney for climate science attack group violate ethics rules?
Last month the American Tradition Institute was handed a legal setback when a Virginia circuit court judge ruled that the University of Virginia did not have to turn over thousands of a former professor's emails to the group, a think tank with close ties to fossil-fuel interests that works to discredit climate scientists and renewable energy initiatives.
Now questions are being raised about whether an attorney with the group violated ethics rules by working on ATI's lawsuit at the same time he was employed by the Environmental Protection Agency without the agency's permission -- and whether he may have altered the paper trail to cover up that fact.
Mother Jones reported this week that lawyers for UVA had expressed concerns with the court over a protective order that would have allowed ATI attorneys David Schnare (in photo) and Christopher Horner to review climate scientist Michael Mann's emails, which were the target of ATI's Freedom of Information Act lawsuit against the school. Now at Penn State, Mann has become a lightning rod for climate science deniers like ATI because of his research showing a recent spike in global temperatures related to human activity.
In an affidavit filed with the court last October, counsel for UVA expressed concerns that ATI seemed to misunderstand that the protective order would allow only Schnare and Horner to see the emails. ATI had issued a press release and made statements to reporters that suggested it would release materials obtained under the order to the public.
In the course of discussing these concerns with a UVA attorney, Schnare disclosed that his last day of employment with EPA would be Sept. 30, 2011. Schnare, who holds advanced science degrees from the University of North Carolina at Chapel Hill and previously worked as an attorney with the U.S. Department of Justice and Virginia Attorney General, worked in EPA's air pollution enforcement division. UVA attorney Richard Kast wrote in the affidavit:
Dr. Schnare's statement of his continuing employment status with the EPA through September 30, 2011, came as a complete surprise to me because on May 24, 2011, prior to my appearance in this Court that resulted in the entry of the protective order, Dr. Schnare had told me that he had worked for the EPA but now was doing public interest law and handling such matters as the FOIA request currently before this Court.
Kast communicated his surprise and concern to Schnare, who responded that he "had authority from the agency to do pro bono public interest law for over 5 years now." Stated Kast:
At no time on May 24 or at any subsequent time prior to his e-mail of September 29 had Dr. Schnare ever represented to me that he continued to be employed by the EPA or had had authority to do pro bono public interest law work for over 5 years or for any other period of time. Dr. Schnare had repeatedly sought to convince me and my co-counsel that our expressions of concern about potential misuse of documents to be provided under the protective order were insulting to someone who had been an EPA lawyer handling highly confidential documents over a long career.
In October 2011, Kast obtained a letter from the EPA's senior counsel for ethics to Peter Fontaine, Mann's attorney, that said Schnare never had the required outside approval "to engage in outside activity that involves the practice of a profession or that deals in significant part with any ongoing Agency program, policy or operation." Quoting from the EPA ethics counsel's letter, the affidavit stated:
Moreover, although a "request for approval of the outside activity was purportedly prepared by Mr. Schnare on or about November 16, 2010, … neither his Deputy Ethics Official nor his Assistant Deputy Ethics Official has any record of receiving it or approving this request to engage in the outside activity."
A memo by UVA attorneys pointed out that Schnare's request for approval refers to the organization as "ATI." But records from the Colorado Secretary of State Business Division show that when the request was "purportedly prepared," the organization was still officially known as the Western Tradition Institute. It did not change its name to the American Tradition Institute until Dec. 18, 2010 -- over a month after Schnare's request was allegedly written.
Furthermore, the request fundamentally misrepresented Schnare's work as counsel for the ATI lawsuit, stating, "My duties would not include any representation at law of the Institute or its members. Institute and affiliated attorneys will conduct all representation of any matters at law."
Schnare's request also claims that all services for ATI would be performed "entirely outside normal duty hours" for his taxpayer-funded job at EPA. But Kast pointed out that the record suggests this was not the case:
... [A] review of the e-mail communications I have received from Dr. Schnare since I became involved with ATI's Freedom of Information Act request in mid-February … reveals that I have received 58 messages from Dr. Schnare from February 17 to September 29, 2011. … Most of these e-mails were sent between 8:30 a.m. and 5:00 p.m. and all were sent on week days and on days that were not federal holidays. Moreover, during this same time period, Dr. Schnare has filed voluminous pleadings in this Court during regular business hours. Mr. Schnare also sent emails to my co-counsel Madelyn Wessel and to the University's Public Affairs Office during regular business hours.
In an interview with Mother Jones, Schnare insisted that he had the proper authorization to litigate the case and that the work was done outside of his EPA job, despite what the paper trail suggests.
The magazine points to the irony that ATI's argument for why they should have access to Mann's emails was to "fulfill the public's right to know how taxpayer-funded employees use the taxpayer's resources."
(Photo of David Schnare from ATI's website.)
Sue is the editorial director of Facing South and the Institute for Southern Studies.