Cautious Stewards

[Revised after actually waking up and re-reading this. Slow down Peter. Some of the following is confusing and it might take a couple of reads. I’m not a technical writer which makes it particularly hard.]

Why wouldn’t ClearWater Conservancy have come out earlier on the Toll Brothers-Penn State land sale? And why wouldn’t they say the kind of thing that I wish they would have? I think it’s likely because they are cautious stewards and wary of their status as a 501c(3). Perhaps there are mundane reasons. This is my hunch.

In what follows I’m deliberately erring on the side of generosity and caution toward ClearWater Conservancy. It is also a test for some counter-reasoning to some of what’s out there now, mostly from Watt’s pieces. This statement is not final. There’s a lot to learn from this conversation, however confrontational…no BECAUSE of how confrontational it is.

There’s a meme going around, supported and perhaps created by Katherine Watt’s recent piece in the CDT and her ethics complaint to Regis Becker at Penn State, that ClearWater’s silence has something to do with inappropriate and nefarious relationships with Penn State’s Business and Finance wing.

I do not deny that there is a lot of money involved in the Toll Brothers-Penn State deal. Money drives much of the university’s decision making. A $13.5 million profit is pretty sweet. I have said that I think the university acts more like a for-profit corporation than an institution of higher learning at times. And yes, I think this leads them to make absolutely the wrong decision—like selling this land for luxury student housing—and that this sale is part of a larger problem—sprawl and barely trammeled growth too close to the Harter and Thomas wells for my liking. The luxury student housing is status quo decision making. It’s a problem. We have to address them.

But the status quo is not necessarily corrupt. I don’t think that it’s unduly hamstrung ClearWater from action in this case. Katherine’s ethics complaint might show otherwise. If it does, we will have to grow. We will have to grow anyway. This whole experience is about personal and community growth. It’s amazing. But anyway…

ClearWater Conservancy fills a role in our community. “Based in State College, ClearWater Conservancy is the foremost land trust and natural resource conservation organization in central Pennsylvania. Since 1980, ClearWater has worked to improve central Pennsylvania for all through land conservation, water resource protection, and environmental outreach to the community.” They are a 501(c)(3) charitable organization which means that they have some limits and prohibitions on their activities. These limits might—might—better explain their seeming reticence and the kind of statement they made in the Centre Daily Times recently.

Some read ClearWater’s CDT piece as too little too late. Some think it’s reasonable. I’m interested in some of the reasons they might have made weighed in when and how they did.

Lobbying

There are 501(c)(3) rules about lobbying. Lobbying can only occupy a certain amount of a budget and time.

First, as far as I understand it, ClearWater’s recent piece in the paper was not lobbying. Lobbying does not include statements on policy issues with a legislative solution as long as the organization (ClearWater) does not address whether a particular policy is good or bad. Their recent piece in the CDT addresses a policy decision – namely the decision of the Ferguson Board of Supervisors about Penn State selling to the Toll Brothers. However, it does not lobby the public or their members to take a particular action or particular stand. They have not commented on this decision’s merits. They also did not comment on the petition by community members that the Ferguson board stop the development. However, they did encourage public participation for source water protection in general and the promotion of permanent protection of the highest quality of Zone 2 water recharge zones in particular. Those recommendations are proactive, aligned with their mission, and not necessarily an endorsement of rebuttal of the Ferguson Board’s actions.

Second, there are rules about lobbying with materials they’ve used before. If ClearWater’s primary mission is to secure land and water through cooperation with landowners then they have a lot of material on which to draw. They’ve had reports. Brochures. They have a track record of documents that COULD be used for lobbying. If they start using those materials in the service of lobbying, then that old material can be deemed as lobbying material now despite its former purpose. This is a little confusing. They’d have to prove that they have used those older materials (reports, fundraising stuff, etc) MORE for their original purpose (reporting, raising money) than for lobbying.

What I gather is it has to look more like this:

Non-lobbying materials used for non-lobbying > Non-lobbying materials used for lobbying

Who is going to measure the use of that time? I think it’s the IRS. If they are in violation and it looks like this:

Non-lobbying materials used for non-lobbying < Non-lobbying materials used for lobbying

…then that could jeopardize their 501(c)(3) status. I think. My hunch is that it could be tricky to prove this lobbying versus non-lobbying and it could be time-consuming to do. My hunch could be wrong.

Third, there are also rules about expenses for lobbying. These include staff time. On lobbying, they can spend 20% of the first $500,000 of their exempt purpose expenditures, 15% of the second $500,000 of those expenditures, 10% of the third $500,000 of such expenditures, 5% of the remainder of such expenditures with a cap of $1,000,000. Who knows where these limits are for them besides them and those who do their budget? And yes, those percentages and such are confusing. You’ll have to do some quick math to work it out. The level of lobbying they’d have done on the Toll issue was probably way below these amounts. But it’s a rule nonetheless.

Other Issues

Watt’s piece implies that Business and Finance at Penn State holds undue, improper, and possibly unethical sway over ClearWater’s board. If you look at the rest of the board by profession instead of just selecting on Penn State Business and Finance affiliation, there are more influences there than Penn State B&F. Four other Penn State employees serve as well: three from water-related academic disciplines at Penn State and one Sustainability Institute employee. The remainder come from engineering firms, finance, law, and a school principal. [Disclosure: I have worked with the principal, Donnan Stoicovy for several years on ecological literacy education but have never discussed this matter with her. She is my son’s school principal.] The make-up provides a robust board invested in water quality with a sizable minority coming from Penn State. However, they don’t necessarily agree on everything because of Penn State

Watt, I think, begs the question that ClearWater has been taken over by the mob, with Penn State Business and Finance as the mob. She’s led us to believe a conclusion that I think lacks the support she needs. It’s not necessarily untrue but she hasn’t proved it to my mind. Is it like Massey Coal or Enron? Those are extreme examples perhaps. For me to buy it on this case I need more evidence. The mountain of evidence that showed us the corruption around Sandusky hasn’t been shown here. Will it surface? As Carl Sagan said, “Extraordinary claims require extraordinary evidence.”

What could show such a web to my mind? Evidence that Penn State employees with a vested interest did not recuse themselves from decisions on this matter. If they violated the Land Trust Alliance’s rules for recusal on conflicts of interest then it would open up more suspicion for me. But three members of the board with perceived conflicts of interest and one actual conflict of interest recused themselves from the matter according to the people involved. Maybe they’re lying. I doubt it.

Somebody call an ethicist. Maybe Jonathan Marks from the Rock Ethics Institute could work this out.

Maybe we need a whistleblower.

Happy Valley. Maybe not.

It’s true that we live in a medium-size town with small town qualities. It has a sometimes veneer of Panglossian good to it. Happy Valley. We have problems. As the natural gas pipeline issue, Jerry Sandusky, and Chris Lee all showed us, there are problems with power, growth, and sexual predators.

I have no doubt that Penn State wields an incredible amount of power. It’s a local elephant. They are sort of like Germany or France in the European Union: they can push the rest of the community around and damage it simply by moving. That’s a problem of power for sure that needs to be addressed and that we have to address through engagement and citizenship. Sometimes quite aggressively. Watt is aggressive. She’s like an inflammatory immune response. I’m mixing metaphors with elephants and immune responses. Bear with me.

I guess what I’m worried about people, including me, jumping to conclusions that aren’t warranted. There’s a lot of potential to make stuff up, to write stories in our minds, to make nefarious cabals, and create guilt by association when we haven’t even proven the initial guilt. I just think that’s a bad idea.

I trust people most of the time when they have repeatedly deemed themselves trustworthy. That’s not the same thing as trusting a whole institution who I don’t necessarily trust. It’s tough to do. I’m doing my best.

A Resting Point

This is my tentative conclusion. ClearWater is not run by nor unduly influenced by Penn State Finance and Business. I also doubt ClearWater wants to put their future at risk by coming out on an issue that’s hot and transient. If they took a more activist stance on this issue, they might have put their 501(c)(3) status at risk. I’m not surprised they’re cautious given that status. They probably should be. It ensures that they can continue to protect our land and water, the open spaces we love. They aren’t environmental supermen and superwomen. They’re cautious stewards participating in public life for our betterment and the protection of our land and water.

But maybe I’m overly trusting.

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