BOS packet posted with info related to tonight’s vote on Special Municipal Employee status request and draft policy

by beth on October 1, 2019

Post image for BOS packet posted with info related to tonight’s vote on Special Municipal Employee status request and draft policy

Above: In early September, selectmen discussed a request about a special designation related to conflict of interest issues for volunteers on Town Committees. They’ll be revisiting the topic tonight. (image cropped from SAM video)

Tonight, the Board of Selectmen will discuss a request by a member of the Economic Development Committee to grant the committee status as Special Municipal Employees. The board will also consider a possible policy for when and how to grant the status to board/committee members.

In preparation, the board posted a packet yesterday with close to 40 pages of related materials. You can open the full 81 page meeting packet here. But I thought it would be helpful to break down the packet into sub-topics. You can scroll down for links to the relevant sections.

The discussion stems from a request submitted by EDC member David McCay in July. His letter explained that while he hadn’t had a direct conflict of interest to date, he was concerned about an upcoming project. While he assured that he would recuse himself from any EDC involvement related to the client project, that may not do enough to avoid conflict of interest issues. To properly handle it, he requested to be designated a Special Municipal Employee. Instead of just asking for himself, he asked to extend the status to all members of the committee.

McCay’s letter states:

To this point, my Firm has not undertaken any engagements that relate in any way to the EDC’s work. It recently has come to my attention that a Firm client may advance a project proposal that arguably relates to ongoing work of the EDC.

Although other attorneys in my Firm will handle that matter, and I will recuse myself from any EDC involvement on the proposal should the need arise, I write requesting that the Board of Selectmen designate the position of EDC member as “special municipal employees.” . . .

“Special municipal employee” status is a routine designation that promotes disclosure of potential conflict issues, allows our attorneys to contribute and volunteer in their home towns, and allows those communities to enjoy the benefits our attorneys’ experience and expertise. The designation was designed to permit and encourage individuals who may have business with a town (either individually or through a family member) to volunteer and serve in their communities. I understand that the State Ethics Commission encourages municipalities to grant “special municipal employee” status to any qualifying position, as this status provides flexibility and encourages volunteerism. This is particularly important on a committee like the EDC, which relies upon and encourages the participation of local businesses and non-profit organizations.

In early September, selectmen debated the issue. According to the minutes*, Town Counsel answered that if granted on a case-by-case basis and “everyone conforms” there shouldn’t be a downside for the Town. But some members were concerned about issues related to conflict, appearance, transparency, and/or fairness.

Vice Chair Marty Healey opined that the conflict laws McCay was looking to avoid were “sneaky” ones that he posited other volunteers are already unknowingly violating. As an example, he referred to the potential that a member on the Historical Commission could work for a company that has a project in front of another board with no connection to Historical.

Selectmen agreed the biggest hurdle to approving the request was lack of a clear policy defining process for other committees/board members to apply for the same right.  The board delayed voting on the request to first consider a policy. To that end, Healey volunteered to compile information on other Towns’ policies.

Since the packet that was posted yesterday is so large, and the follow up meeting is tonight, I thought it made sense to break into more navigable chunks. You can find the following items by clicking on the links:

*I haven’t had a chance to review the full discussion on video. You can do that yourself here. The posted recap of the discussion is on page four of posted minutes for the 9/3/19 meeting here.)

{ 16 comments… read them below or add one }

1 volunteer_means_not_paid October 1, 2019 at 5:12 PM

No monetary compensation for members of the EDC! These people volunteered for their roles. If they’ve decided the want to be paid, then bring a warrant before the Town Meeting next spring.

If they feel they cannot move forward in their current volunteer roles, then, please, step aside.

Volunteer = unpaid

Get it?

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2 beth October 2, 2019 at 8:16 AM

The request wasn’t requesting compensation. The SME designation is one that can be given to unpaid volunteers.

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3 beth October 2, 2019 at 11:03 AM

To further clarify, in looking at documents, it appears that all board/committee volunteers are considered “Municipal Employees” as they work on behalf of the town and have to follow laws that apply to employees. The request was to categorize members of the committee to be in a special category – the “Special Municipal Employees”.

Full disclosure, I still haven’t heard or seen what happened last night. So, I don’t know if the request was granted. I just didn’t want a misunderstanding out there about what the request represented.

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4 Julie Connelly October 2, 2019 at 10:40 AM

I currently serve as the Chair of the EDC, and I want to reiterate that we are absolutely not paid, at no point have we requested or even discussed being paid. EDC members, like all boards and committees, volunteer our time.

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5 Pay Attention Taxpayers October 2, 2019 at 12:46 PM

To Ms. Connelly — As Chair of the Committee; what are the answers to the following questions:

1) Where in the EDC Minutes exactly is the Economic Development Committee vote authorizing Mr. McCay to act on behalf of the committee and request Special Municipal Employee designation?

2) In Mr. McCay’s request letter, he never outright states clearly what the problem is for him, i.e. what exactly has he / the committee been working on (e.g. Downtown Zoning Initiative?) that requires that designation or he must leave the committee?
He mentions that a private client is bringing forth a proposal that would present a conflict of interest, but he never states what the public town business is. What public town business specifically is causing the problem for him? Is it the Downtown Zoning Initiative? As public town business, it should be talked about publicly and the town voters are due an answer to these important questions.

3) The designation is not given to individuals. It is given to committees / boards. Why is the request letter on Mr. McCay’s letterhead?

4) Mr. McCay stated in his prior presentation to the BOS that the Ethics Commission favors use of this designation, while last night Mr. Stivers of the BOS stated that he called the attorney of the day at State Ethics and they unequivocally stated that they do not encourage use of the SME designation. Wouldn’t the State Ethics Commission be the authority on this matter?

The voters should be on high alert to potential problems and the potential downside of granting this designation. This is being rushed through with little public awareness other than this article. Rushed through for the benefit of one member? One committee? Based on a dubious need? This designation was appropriate long ago in towns, but no longer. And in my humble opinion, we certainly don’t need any more attorneys, thank you very much. There are plenty of members (including attorneys!) to carry on. We need balance and no conflicts of interest and certainly more transparency, not less.

Just my opinion, but the question of the day is about private client interests (companies, private developers, etc) and personal financial interests of “volunteers” potentially overriding the best interest of the taxpayers and voters who interests can be easily ignored. No one wants this. It’s bad for the town.

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6 Lucy October 3, 2019 at 8:18 AM

If it looks shady and sound shady chances are it is. Thank goodness we have Selectmen in town now that don’t look the other way with this group. There is no way the Chair of the EDC answers the transparent questions that you asked. What does McKay have to do with this? Oh he represents and profits from developers and their interest that’s right.

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7 volunteer_means_not_paid October 6, 2019 at 9:40 AM

What, then – specifically, are you seeking with the SME designation? What is the problem with leaving things as they are? I see a lot of fancy footwork and, unfortunately, I don’t see clear, straightforward answers being provided.

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8 Pay Attention Taxpayers October 3, 2019 at 9:52 PM

To Ms. Connolly: Are you still out there? The taxpaying residents are owed some answers.

To Lucy:
You state above: “thank goodness that we don’t have BOS members that look the other way on this group. . .” You may well be disappointed. At least several of the BOS have already pushed for a vote(!) using the DRAFT document.

This is without even doing the basic due diligence on the matter, namely the questions raised above and with zero exploration, compiling of any list of downside considerations, or any public discussion at all of potential downside possibilities to serving the best interests of the Town and taxpaying public, the people they represent.

Instead, the policy drafter, Mr. Healey, asked the applicant, MR. MCCAY (?!), if there was any downside, to which he responded no.

Instead of coming out of a committee, the draft policy is being written by one person, Mr. Healey, an attorney who stated at the prior BOS meeting that he got this designation for himself some years ago, in a different capacity.

As of Wednesday’s BOS meeting:
1) Mr. Healey – is the author of the policy. The policy is being drafted in response to Mr. McCay’s request.
2) Mr. Kolenda – called for a vote to install the policy.
3) Mr. Shea – discussed his worry about his own possible conflicts of interest and how this rule might generally apply. He stated that he would like to wait for Ms. Braccio’s feedback.
4) Ms. Braccio – was unable to attend the meeting, but expressed concerns and objections at the prior BOS meeting.
5) Mr. Stivers – expressed concerns at the prior meeting; at Wednesday’s meeting he stated that, contrary to Mr. McCay’s earlier statement, State Ethics does NOT favor Special Municipal Employee designations.

With NO POLICY, all members of EDC will have to follow State Ethics Laws as they currently exist. This would actually keep current protections to the Town and the citizens by compelling compliance with State Ethics Laws. What a shame!

The taxpayers need to stay on high alert and call / write to BOS members. This policy is not necessary at all, and it absolutely merits a full public townwide discussion of downsides. Also, any and all policies likely should be coming from a committee, which includes members of the voting public at large. Not a single author without outside independent input. There should be an independent ethics / policy committee. There have been many complaints in town that the Town is not “doing it right,” i.e. following the correct conflict of interest review process, which requires the BOS to opine on possible conflicts or appearances of conflict.

When is the last time the BOS did such a review and rendered such an opinion? The answer could well be rarely to never in recent years.

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9 Al Hamilton October 8, 2019 at 9:38 AM

Here is an explanation of Special Municipal Employees:

https://www.mass.gov/service-details/special-municipal-employees

The long and short of it is:

1. That all volunteers are considered Municipal Employees (unpaid) and are subject to fairly restrictive ethics laws.

2. Volunteer boards benefit greatly from the unpaid, specialized, expertise of certain professionals who may serve on those boards. (Eg Lawyers, Engineers, Electricians, Doctors, Plumbers, Architects, Vendors who sell products to municpalities. etc)

3. In the course of their normal business these volunteers (also part time paid employees in some cases) may find themselves doing business with some unrelated part of the town which could be considered a conflict under the very strict definitions of the ethics laws.

4. The BOS has the authority to ease, these definitions, so as to permit the persons designated as Special Municipal Employees some relief from the most restrictive of the conflict regulations.

5. Special Municipal Employees must still not engage in conflicts that impact matters that may be covered by the board or position they occupy.

6. The status of Special Municipal Employee is not granted to a single person but to all the persons in a particular classification (in this case the EDC).

The town already has difficulty recruiting folks to serve on these boards or run for elected office. The well meaning ethics laws and open meeting laws already serve as a deterrent to service not to mention the occasional anonymous brick bats thrown on these pages. We all benefit from the unpaid services of these board members. It is unreasonable to expect these folks to in addition to burdens of public service to forego income derived from unrelated activities that might run afoul of overly strict ethics rules.

Regardless, the BOS or other elected body is ultimately responsible for the performance and behavior of those they appoint. If you are not happy with the performance of the EDC or other board, find candidates to run for the BOS who will implement your vision of the proper role for the EDC or other body.

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10 Pay Attention Taxpayers October 8, 2019 at 12:57 PM

Ms. Connelly — the taxpaying public is still waiting for answers to some important questions above — not crickets.

Mr. Hamilton — Sorry, but your opinion tends to whitewash serious considerations on conflicts of interest. “Well meaning ethics laws” ?? Really??

The problem is not perceived by many as you have stated above. The fact of the matter is that on any board or committee service, no one wants to sit next to anyone who is or has the potential to engage in serious conflicts of interest, line their own pocket, or put the interest of themselves or a private client above the interest of the Town. This includes any persons in the fee business (attorney, engineer, real estate broker, etc.)

With regard to this request for SME designation, it merits high alert by the taxpaying public. There are plenty of people on the EDC. No one is going to miss a single individual. That committee has more than one attorney.

What’s the downside for the town residents? Their interests being overlooked and ignored? Inside track for clients, private interests? Earning a fee for yourself, your partner, or your company and putting that first over the citizens? Is this already happening on various boards and committees? Who is filing forms and who is not? The complaint has been lodged over and over again that this town “isn’t doing it right,” i.e. process and enforcement.

You are correct. The BOS is the ultimate appointing authority who is responsible — when is the last time they reviewed Conflict of Interest Forms and rendered an opinion? Rarely? Never, in recent memory? So this opinion in large part does not match yours: It’s not about attracting volunteers. Volunteerism will go up when the potential for abuse is gone and the town “gets it right.”

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11 Al Hamilton October 9, 2019 at 8:34 AM

I was serious about these well meaning laws. Both the ethics laws and open meeting laws are well meaning but have some very real downsides for the public.

The ethics laws reduce the pool of potential candidates for public service. Particularly the pool of people with substantial expertise in a particular area. What this means is that boards have a harder time marshaling the resources to counter those that pay for expertise to get their way.

Nowhere is the chilling effect of the open meeting law more evident than on these pages. Public officials are fearful of engaging the public on this blog for fear of running afoul of the open meeting laws. It should be noted that the AG actually says this is probably ok (never go to a lawyer for a straight answer). Of course nobody ever seems to remember that freedom of speech and the press are guaranteed by both the Massachusetts and US constitutions.

I acknowledge that both these laws were passed to reduce some bad behaviors but they in turn have had unintended consequences that do not necessarily benefit the public.

To put the shoe on the other foot, what steps would you take to reduce the vacancies on public boards and committees? What would you do to increase the number of contested elections?

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12 Pay Attention Taxpayers October 11, 2019 at 4:38 PM

Are you serious? “Chilling” effect of Open Meeting Law? This town has more complaints and violations than many towns. “Reduce bad behaviors?” When is the last time you heard about this town government even reviewing conflict of interests, never mind calling someone out on conflicts, or saying no, i.e. identifying a conflict?

Do you think there are any “good ole boys” working with one another, making permitting easier?

Greasing the way is “inside track.” That is against state laws. Granting Special Municipal Employee status can lead to decreased transparency.

How to increase volunteerism? The answer is obvious. Follow good procedures. Clean up the conflicts. Get rid of those who are not even disclosing and think they cannot be caught. Vote out and remove those who skate the line and are dishonest. That will attract volunteers who don’t want to sit next to those deceitful persons who are bad for the Town.

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13 Honestly Able October 8, 2019 at 4:41 PM

Those pesky Ethics laws. As one neighbor put it, hypothetically speaking, it’s so much easier when the board chair is a family member or a business associate or a business associate of a partner. Or if the Committee member’s firm client is the developer who benefits from the new zoning or a favorable treatment (aka bias). It’s all so much easier if the head of your company is the town administrator or the town counsel fights the developers battle for him. Go ahead. Mislead the public with the lack of discussion of downside. But answer the question: what committee member will vote the public best interests over the developers interest? Don’t hold your breath waiting.

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14 my town sb southborough October 16, 2019 at 11:00 AM

The BOS passed a Special Municipal Employee (SME) policy last night, and immediately violated the policy. The BOS took action on a policy with no formal vote or initiative request from the EDC Committee itself (and without asking other EDC members about the policy). The request came from an individual (which is prohibited by the same SME Policy voted through). This is a violation of that policy. Sound crazy? Not sure this is even legal and appears to be deceptive.

The BOS vote was 3 in favor to 2 opposed. Of the 3 in favor, two members (Mr. Shea and Mr. Healy), expressed concerns, respectively, about their own conflicts and received the designation in the past. The 2 opposed (Ms. Braccio and Mr. Stivers) expressed concerns about transparency and public interest. Glad to have those two on our side who speak for the people.

In the meantime, Sam Stivers hit the nail on the head: While Marty Healey drafted a policy that seems innocuous enough, referencing non-policy making committees as harmless and deserving of the SME status, the fact of the matter is that EDC is involved in their own “Downtown Zoning Initiative.” Unbelievable. Do you want this committee to shape zoning of our Downtown that may directly benefit their firms clients (and their own financial interests) and not the interests of citizens of Downtown or the town at large? Reader you be judge: call or write your Board of Selectmen.

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15 Master Plan Without the Town October 16, 2019 at 11:54 AM

Shame on the BOS members who awarded the Special Municipal Employee status to the Economic Development Committee last night, in violation of the very same policy.

And what is even more curious were those in the audience who have their own direct financial relationships with developers in Town, i.e. tenants, clients, etc. Direct financial relationships require persons to recuse themselves on certain matters, not optional. Watch out for bellying up to the bar looking for an SME designation.

EDC, like it or not, is involved in zoning. It is not their legal authority. But that isn’t going to stop them from running roughshod over the residents interests.

They are attempting to draft zoning anyway with their new grant. Watch the ball go down the field, without the residents even understanding what is happening.

On a separate note, by the way, did you hear? St. Marks is buying up houses on Main Street in the vicinity of their newly acquired former police / fire stations. Smells like an ASSEMBLAGE. Call it a hunch but this feels like someone (and not the committees and Boards with the actual legal authority) is master planning without the Town people. The potential to wreck downtown with traffic volume, congestion, density is real.

Just one opinion, but the EDC crybabies may well appear at the next town meeting looking to convince the public with their negative down talk about Planning Board and those actually charged with the task. This EDC should be disbanded. They exceed their authority and bully elected officials and others.

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16 Southborough Town Clerk November 5, 2019 at 12:46 PM

Hello,

If you want to learn more about Special Municipal Employees, you should come to the Southborough Senior Center tomorrow (Nov 6) at 6:00 pm to hear Dave Giannotti from the State Ethics Commission speak about ethics rules.

I’ve heard Dave speak several times. He’s very candid and a very good presenter.

Jim Hegarty
Southborough Town Clerk
(508) 485-0710 x 3007

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