It may be getting harder to gauge the potential ethical conflicts of President Trump’s appointees without a scorecard and calculator, but here’s a candidate boasting what critics say could be the most direct conflict of interest of anyone poised to join the administration.
He’s Barry Myers, the former chief executive of Pennsylvania-based AccuWeather, which was founded by his brother Joel. AccuWeather still is controlled by Myers’ family. Joel currently serves as its CEO.
Myers has been nominated as head of the National Oceanic and Atmospheric Administration, a crucial scientific agency whose public activities AccuWeather allegedly has tried to restrict, largely because services provided by the National Weather Service, a NOAA agency, compete with AccuWeather’s business model of offering similar services for a price.
As Walter M. Shaub Jr., who headed the Office of Government Ethics under the Obama administration, put it last year, while Myers still served as AccuWeather’s CEO, Myers was the head of “a tightly held family company with interests directly affected by the work of the agency he would lead if confirmed, and the company has expressly advocated for policy changes at the agency in order to boost company profits.”
That was in a letter Shaub sent the Senate leadership in January 2018, while Myers’ initial nomination as NOAA administrator was pending. That nomination expired with the seating of the new Congress this year, but Trump revived it, restarting the confirmation process. Now the GOP-dominated Senate appears poised to wave the nomination through, possibly within the next week.
Myers strongly denies that he’d be ensnared in ethical conflicts as NOAA administrator. He has always been an advocate of “freedom in access to Weather Service data,” he told me in an interview, adding that he has “always been a major supporter” of the National Weather Service.
Myers also noted that he has severed all his connections to AccuWeather. “I’ve actually gone to extraordinary lengths to eliminate not only any conflict of interest but even the appearance of a conflict of interest,” he told me. He stepped down Jan. 1 as AccuWeather CEO and sold his shares back to the company in a private transaction. He also pledged to recuse himself from “any particular matter involving specific parties” related to AccuWeather. The recusal, he says, is not only for the one-year term required by law, but for as long as he remains at NOAA.
Is that sufficient to address concerns about the potential for ethical conflicts? Not necessarily. After all, Myers wasn’t a conventional CEO running a public company as a hired gun; he was a family member running a family firm where relatives still are in charge.
The Myers appointment underscores Trump’s dubious practice of appointing industry insiders to agencies that have been entwined with businesses. It’s almost impossible to cleanse those appointments of all suspicion of conflicts of interest, no matter how complete the apparent divestments.
That’s because it’s always possible that insiders will return home after their term in public service is over. The overhanging suspicion of a revolving-door appointment can’t help but undermine the public’s faith that an appointee is acting exclusively in the public interest.
Myers’ divestment of his AccuWeather interests may seem complete for now, but nothing would keep his family from welcoming him back. The terms of his stock sale also have raised eyebrows. According to his financial disclosure form, he sold his shares back to AccuWeather for $15.9 million on Jan. 1.
But since he earlier had declared the value of those shares to be more than $50 million, Shaub has observed, the circumstances “raise the possibility of a sham transaction.” There’s no evidence on the record that Myers would be prevented from repurchasing the shares at the same price after his public service has ended.
Myers says the earlier figure derived from a valuation of public companies similar to AccuWeather. But since AccuWeather was private and therefore didn’t have a public share price, its value was only conjectural.
Myers told me that the shares had to be sold back to the company, and $15.9 million was all the company was willing to pay. “The board of directors was willing to go so far and no further,” he says. He says “there are no arrangements, formal or informal,” for him to reacquire the shares after he leaves the administration.
NOAA may not be a household name, but the public is familiar enough with its services. The agency, an arm of the Commerce Department, is the parent of the National Weather Service, which in turn is the parent of the National Hurricane Center and the Storm Prediction Center, which forecasts violent thunderstorms and maintains a tornado watch. Its fleet of aircraft and Earth-orbiting satellites tracks flood threats, climate changes and the sea-level rise in coastal waters, in addition to issuing weather forecasts four times a day.
Those weather forecasts, by the way, are some of the raw material that AccuWeather relies on to make its own predictions for commercial consumption. So it would not be surprising if AccuWeather resents the National Weather Service for issuing its own forecasts for free.
NOAA’s advocates are fearful that as NOAA administrator, Myers would pursue the policies that he advocated as a private businessman — working from the inside to achieve what he couldn’t do from the outside.
“Myers has built his business by taking NOAA data paid for by the taxpayers and turning it into products that AccuWeather sells,” observes Andrew Rosenberg, a former NOAA scientist and manager who is now director of the Center for Science and Democracy at the Union of Concerned Scientists. “There’s nothing wrong with that, but he’s also pushed for the idea that the government shouldn’t compete with private business.”
Let’s take a closer look at Myers’ qualifications, and his history with NOAA.
To begin with, Myers is not a scientist. That makes him an outlier among past NOAA administrators, all but one of whom had an academic scientific background.
He says he doesn’t consider that a problem. “I think I’m extraordinarily qualified,” he says. “I’ve run a science company that has been the most successful in the world at what it does and is directly related to what NOAA does.” He says he has business skills “that are needed to run a $4- to $5-billion agency that many scientists do not have.
The Myers family’s efforts to hamstring the National Weather Service date back to 2005, when they apparently prevailed on their home-state Republican senator, Rick Santorum, to introduce legislation that would have barred the National Weather Service from issuing any weather forecasts that could be issued by private businesses. The Weather Service would be limited to forecasting extreme events such as hurricanes, tornadoes and tsunamis.
The danger in privatizing fundamental services, Rosenberg argues, is that businesses have incentives to make commercial decisions that could leave services that are important for the public, but not profitable, out in the cold.
“What’s to say that AccuWeather would continue to provide products that people will need but are less able to pay for?” Rosenberg asks. “And if Congress says we shouldn’t continue to increase the capabilities of NOAA instead of letting private business take on some of these responsibilities, then we lose the capability if AccuWeather’s business model changes.”
Myers on March 18 issued a letter to the Commerce Department ethics office pledging to recuse himself from “any particular matter involving specific parties” related to AccuWeather.
That sounds straightforward, but it should be regarded skeptically. The “particular” and “specific” terminology has been used as a dodge by David Bernhardt, the recently confirmed Interior secretary, to allow him to participate in agency proceedings with manifest benefits for his former law clients in the natural resources industry, among broader impacts unrelated to his clients.
The same thing could conceivably happen with NOAA and AccuWeather — some decisions Myers might make could have positive impacts on his family’s business, but might also have broader applications that obscure, but don’t eliminate, the potential conflicts.