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HomeMy WebLinkAbout1996-12-10 Board of Selectmen Minutes Board of Selectmen Meeting December 10, 1996 The meeting was convened at 7:30 p.m. in the Selectmen's Meeting Room, 16 Lowell Street, Reading, Massachusetts. Present were Chairman George Hines, Vice Chairman Camille Anthony, Secretary Bruce MacDonald, Selectman Sally Hoyt, Town Manager Peter Hechenbleikner and the following list of interested parties: Ron Morse, Bill Hancock, Tim Twomey, Virginia Adams, Nancy Eaton, Mary Andreola, Gladys Cail, Betty Cronin, Gina Snyder, Susan DeMatteo, Steve Chapman, Lucky Hulse, Dick Howard, Frank Driscoll, John Coote, Catherine Kosta, Robin D'Antona, Gail Wood, Dennis Lucyniak, Margaret Cowell, Wilbar Hoxie, Bob Brown and Will Finch, Mike Flammia, Bill Hughes. Town Manager's Report Proclamation on RMHS Football - On motion by MacDonald seconded by Hoyt, the Board approved a proclamation congratulating the Reading Memorial High School Football Team on their second consecutive Super Bowl win. Discussion/Action Items Discuss Town Policy on Representation by the Town in Ethics and Conflict of Interest Cases - Town Counsel reviewed his memo submitted December 6, 1996. He noted that there is a case of a current Board, Committee or Commission member being investigated by the Ethics Commission relative to the role as a Board member. Gloria Hulse asked if there were any previous cases, and Cohen noted that there were no formal investigations. There were seven areas that Cohen reviewed: 1. What category would be defended - criminal or civil cases? If there is a criminal case, then the Town cannot indemnify. 2. Is the activity related to the employees official duties of employment? 3. Is the case merely being investigated, or are there actual charges? 4. Is the action being investigated a violation of a written opinion of Town Counsel or the Ethics Commission? 5. Was the Town itself harmed, were others harmed, or is it just a technical violation of the conflict of interest law? 6. Would the Town change its position during proceedings - i.e., provide a defense during investigation but perhaps not during a formal hearing. 7. There is or may be a conflict between the Town's interest and the employees' interest. The Ethics Commission feels that Town Counsel can never represent an individual and, Board of Selectmen Meeting-.December 10,1996 - page 2 therefore, Special Counsel would have to be hired. Cohen will get a copy of this opinion from the Ethics Commission. George Hines noted that the perception of conflict is often the guideline. He raised the case of his son being on a ballot for State Rep, and the Ethics Commission advised that Hines abstain from voting to close the Election Warrant. Hoyt noted that there is sometimes business before the Town.by her husband's family and in order to avoid a perception of conflict, she abstains. Cohen noted that the officers of the City Solicitors and Town Counsel Association are not aware of any towns that provides representation. In one or two communities, Town Meeting has voted reimbursement in a case. He also noted that there is a possibility of a member of a Board; Committee or Commission being "harassed" by a disgruntled employee or applicant - so called "slap suits." Cohen noted that if Special Counsel is employed, then the issues that need to be dealt with by the Board of Selectmen include how the Special Counsel is selected, who selects it, what qualifications are required, what the cost would be and the source of funding, and that there be a requirement that the employee cooperate fully. Gina Snyder from the Hazardous Waste Committee asked what the risk of providing defense in a case would be? How often has this situation occurred and at what cost? Town Counsel noted that he is aware of only one case in the past 20 years. He admitted that he may not know all such cases if the employees defended themselves. Bruce MacDonald asked if Reading was an exception in terms of the number of cases and Counsel felt that Reading very seldom has conflict --- of interest issues. Mike Flammia noted that a lot of the Ethics Commissions activity is in State Government. Ted Cohen noted that there was a technical violation with the two teachers who were on the Board of Library Trustees, but this has been resolved legislatively. Tim Twomey asked whether we were considering implying the same provisions to paid employees and volunteers. He asked what the state does with regard to indemnification, and Cohen will investigate this. Bill Hancock asked if the political organizations would be covered. Cohen noted that they are not considered employees because they are not appointed or elected by their communities. Camille Anthony noted that the issue was not only for conflict of interest issues relative to potential financial gain. It is an issue of usurpation of power too. When she was on the Conservation Commission and got a summons, she was always glad that she was covered by the Town. She felt that it is important to protect the volunteers. Cohen noted that the Town has always defended in every case other than conflict of interest cases. He noted that if someone was found guilty, the Town cannot legally pay the fine even if the Town defends. In tort cases, the Town or the insurance pays. Board of Selectmen Meeting;-December 10. 1996 - page 3 Steve Chapman asked a hypothetical question-if a member of CPDC and an applicant propose an intersection design and the design was built and there was a fatality, would there be liability? Cohen noted that falls under the Tort Claims Act and that employees of the Town cannot be held personally liable for making a decision. If, in carrying out the decision, it is done in -a negligent manner, then the Town could be held liable. George Hines noted that in these kinds of cases, it is important that the Board, Committee or Commission get input from professional staff. Gail Wood from the Water and Sewer Advisory Committee noted in one case cited by Town Counsel there were two costs - the fine and the defense. It is our understanding that the Town cannot even address the fine. The only thing that the Town can address is the defense. Dick Howard noted that there are standards of conduct with regard to the conflict of interest law. Bruce MacDonald asked how the Town could deal with tort liability issues. Cohen noted that the Town may vote to indemnify under intentional torts. These are Section 9 cases which are dealt with on a case by case basis. On Section 13 cases, the defense is automatic. Most tort claims are civil rights actions. In Reading, one such case was settled by the insurance. Indemnification and tort claims are done after the fact. MacDonald asked who has standing to bring a complaint. Cohen noted that his observation of the Ethics Commission is that anyone may bring a claim, and i the Commission uses discretion. However, if anyone files a sworn affidavit then the Commission must investigate. Any such case could be very simple or it could be more complex and require advice from an attorney. MacDonald noted that if there is a lack of clarity in the law as to potential conflict, what should am employee do? Town Counsel noted that they should talk to him or could talk directly with the Ethics Commission when they perceive that there may be an issue. Tim Twomey asked if the Board of Selectmen votes to provide representation, can the Board of Selectmen vote not to do so in the future? Town Counsel noted that is a possibility. A Board of Selectmen policy is a policy until it is changed. This could represent a problem if it was changed retroactively. There needs to be some discussion as to when the Town would represent. Someone would have to make that initial decision. George Hines asked if Town Counsel felt providing a defense would promote cases. George Hines also asked if the Town should cover existing situations. Dick Howard felt that with only one occurrence in 20 years, maybe the Board should deal with this on a case by case basis. Mike Flammia noted that all members of Boards, Committees and Commissions should be required to attend seminars. The paper work received by appointees when they are appointed is good, but ongoing education would be important. Board of Selectmen Meeting-December 10 1996 - page 4 Bill Hughes asked if the defense would apply only to conflict of interest or other litigation. He noted that the Constables are challenged and threatened. Cohen noted that he has never had a Constable case. If Constables are considered municipal employees, then the policy would apply to them. He did note that Constables are required to maintain their own insurance. Bill Hughes asked if a person serving as a member of a Board, Committee or Commission can purchase goods and materials from a store where the Town also does business. Counsel noted that as long as there is no preferential treatment or pricing, then they could. Gloria Hulse asked if an order of conditions is approved by the Conservation Commission and a complaint is filed, does Town Counsel defend? Counsel noted that this is the case. If there is a court proceeding challenging a decision, Town Counsel also represents. Counsel noted, however, that an ethics complaint is a separate issue, and could be a civil case or a criminal action prosecuted by the Attorney General's Office. Bruce MacDonald noted that we need to provide a framework to determine whether or not a defense is to be provided. Sally Hoyt questioned the need for Special Counsel. Will Finch of 51 Mill Street noted that as part of the Selectmen's policy they should make it clear that decisions of the Town are backed up by the Town. The Board of Selectmen should make a fair judgment on each case, and if they don't feel that there is a conflict, then the Town should defend. Lucky Hulse asked if there was a case regarding a loss of profits claimed by an applicant, would the Town defend? Counsel noted that the Town would defend. Michael Flammia noted that these kinds of cases are more likely to occur in tightly contested applications. The Town should indemnify. Gail Wood felt the Town should provide a defense. They should weigh the cost of a defense against the free time and expertise they receive from all the volunteers. The exception should be if the employee was previously informed of potential conflict. She also felt that if the Town provides a defense, then the Town should decide who to hire. Gina Synder agreed. Steve Chapman noted that if it is a frivolous case, it is hard to tell that initially and the Town should provide the defense. Bruce MacDonald noted that if the policy is in place and it costs nothing, it is just good insurance. There are two phases to cases -- one investigative and one prosecution. The policy may need to provide for an evaluation after the investigative stage. Gail Wood asked the Board of Selectmen to send out a draft policy prior to its projected action. Steve Chapman asked the Board of Selectmen to look at retroactivity of any such policy. Will Finch asked if members of Boards, Committees and Commissions can ask for advice of Counsel in advance to avoid conflicts, and it was noted that they could. John Coote asked if the potential financial conflict of interest is only for an individual, or could it accrue to the Town - for example, when a member of the Board of Selectmen is testifying before a Board and it affects Town property. Town Counsel noted that this is not a conflict. Town Board of Selectmen Meeting-December 10, 1996 - page 5 Counsel will develop a draft policy with the assumptions clearly stated, and it will be reviewed prior to a hearing established in January. Sally Hoyt and Bruce MacDonald noted that they support development of a policy. George Hines directed the Town Manager to work with Town Counsel, and establish a process to review and adopt a policy in January. The Board also directed that a workshop be developed this winter for all Board, Committee and Commission members. It was also suggested that the appointment process be revised and that appointments are conditioned upon the appointee attending workshops within one year of their appointment. Will Finch asked about the definition of direct financial interest and a definition of an abutter. The Chairman thanked everyone for attending, and on motion by Anthony seconded by MacDonald, the Board voted to adjourn at 9:30 p.m. by a vote of 4-0-0. Respectfully submitted, Secretary