Town’s list of Special Municipal Employees

by beth on October 29, 2019

On Friday, I posted about the Town’s new policy for  Special Municipal Employees. That policy included defining a process for designating SMEs. I noted that the Town had designated them in the past on an ad hoc basis. At that time, I didn’t have a list of who received that status. I now do.

An email from Town Clerk Jim Hegarty shared his list of which positions in our Town Government have the status. He explained that there was no background in the files that explains the justifications for granting the status with more flexible conflict of interest rules.

Here is the list with the dates that the designations were granted:

Advisory Committee – 5/22/07
Board of Assessors – 5/22/07
Town Counsel – 5/22/07
Tree Warden – 5/22/07
Board of Council on Aging members – 5/11/10
Election poll workers – 5/11/10
Economic Development Committee – 10/15/19

Notably, Town Counsel is one of the positions that the new policy defines shouldn’t have it.

The policy also calls for the Board of Selectmen to review the list each year. If they choose to revoke status, they will notify the person/committee in advance of the vote.

{ 9 comments… read them below or add one }

1 Conflict of Interest Laws / SMEs January 1, 2020 at 4:11 PM

Beth, a recent Conservation Commission appointee (appointed as Special Counsel– but recommended and selected by Town Counsel) was hired by the Town but also given Special Municipal Employee (SME) status. Also, in your article above, Town Counsel is listed as having “SME” status. This does not match up with Town Counsel’s statement in a recent Board of Selectmen meeting where he stated that he did not want and never had the designation. Are there minutes to the 2007 meetings explaining the SME grants (can links be provided)? Also, Mr. Healey (an attorney on the BOS who got the same designation for himself in the past) just helped draft the new policy and helped Attorney Dave McCay get the SME designation, however, Mr. McCay simply dropped off the EDC, even after being granted the designation, which is puzzling.

Can you provide a link to the actual SME list either here or where you have posted the link to the policy itself? Also, the conventional taxpayer wisdom is that there is no reason (or it is highly undesirable) for any attorney, especially any town attorney who is supposed to be representing the town, to have SME status. Why were those on the list in the article above granted SME status? For what reason was the new Con Comm attorney granted SME status? And why is the Town Attorney on the above list? What was the rationale given in 2007? It is now 2019. How could those on the list not know that they were on it? Thank you for any sunshine you can shed on this topic.

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2 beth January 2, 2020 at 9:45 AM

I can’t answer all of your questions.

I can share this link to the document I copied the list from. (Though, I’m not clear on how that helps anyone.)

Town officials have indicated that they weren’t able to find explanations for most of the past SMEs. For the Town Counsel position, it pre-dated the hiring of the current Town Counsel and the election of the current board.

I did also find McCay’s resignation timing interesting. As I posted in November, his resignation letter cites his work for St. Mark’s School as the reason for resigning. He stated that he didn’t want it to cause a distraction for EDC’s Downtown Initiative efforts. It doesn’t specify whether or not any part of complying with the SME policy contributed to that decision. (As I previously posted, selectmen defined a policy for SMEs that McCay publicly objected to when they were drafting it.)

I’m not sure where you derive “conventional taxpayer wisdom” from, since not many people weighed in publicly on the Town’s SME policy. Selectmen certainly opined that Town Counsel shouldn’t have it. I don’t recall them saying that no lawyer should have it. The conflict with Town Counsel was resolved in November when the SME status was rescinded for Town Counsel.

I don’t know yet the specifics on this particular special counsel, but there is a significant difference between general Town Counsel and a specially designated one. The former should represent the Town’s interests in all matters – so any kind of conflict would be an issue. The latter needs to represent the Town’s interest only in specific matters.

Selectmen drafted a policy arguing that it was to allow people to serve when the law would otherwise designate a conflict of interest when for a person who doesn’t appear to have one related to his/her role for the Town. They described scenarios where someone could be conflicted out as a regular municipal employee by his/her employer’s involvement in a project in front of another board with no overlap.

To avoid a conflict problem, the board drafted a policy that requires the SME to disclose information on all of the conflict issues that would have been prohibited for a regular Municipal Employee. Presumably, that would have been reviewed by selectmen before they granted the status. That information is to be on file with the Town Clerk’s office, available for inquiring public. You could reach out directly. But I will follow up to see what is publicly available on the new SME.

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3 Conflict of Interest Laws / SMEs January 2, 2020 at 10:18 AM

Thanks Beth. Regarding the link to the list above itself: where is the list from? What source / committee / board? Where did you find it? Who maintained that specific list in their file?

Also, at a recent BOS meeting, Town Counsel made his second legal report to BOS for the decades he has been working for BOS and the town. He earned high praise from Mr. Kolenda for making his second report to the BOS. Town Counsel also stated that he was hired in 2002.

However, from the list you posted above, it looks like a number of SME designations were actively sought, worked on by the BOS(?), and given by the State in 2007. So the 2002 and 2007 dates do not line up. All of this information is public (or should be). Could you perhaps post links to the BOS Agendas / Minutes for 2007 that explain who and how Town Counsel got this SME designation, as well as the others? If BOS cannot remember exactly why and the reason given, it seems that those who have this exception to Conflict Laws should state their current need. According to the new policy, they must justify specifics on their need to the public / taxpayers. This should not be some automatic carry over from a time that no one in charge can recall. Thank you for any light you can shed.

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4 beth January 2, 2020 at 10:43 AM

The list, as I specified in the post and comment, was sent to me by the Town Clerk. It appeared that the Town had to research this when McCay’s request prompted them to evaluate the situation.

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5 beth January 2, 2020 at 10:58 AM

I just put in a request for the 2007 minutes, but don’t know when I will be able to get those. The Town has posted all BOS minutes online going back to 2010, but not earlier.

Also, the fact that the Town Counsel designation predated current counsel was stated at meetings. I don’t know what is behind the conflicting dates you cite. I have yet to listen to the discussion you recount, and don’t have the minutes clarifying what happened in ’07.

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6 Conflict of Interest Laws / SMEs January 2, 2020 at 12:26 PM

Contrary to what has been claimed, town counsel was employed by the town in 2007, when the sme designation was approved.

He stated in a recent BOS meeting he started in 2002.

But he stated in prior BOS meetings that he never had it. The 2007 list shows town counsel on the list. How could he claim he never had it and doesn’t want it, but it’s on the 2007 list. He had it. No town counsel should ever have it. How did it end up on the list? How could he not know he was on the list? Who submitted the list to the state? Who was on bos and voted this through? The minutes should reflect who exactly voted that list through. Thank you.

7 beth January 2, 2020 at 11:45 AM

I got a quick response on my request. You can read the minutes here, but not context is given to the approvals other than it was done when they voted on annual appointments:

The Board voted unanimously to designate Town Counsel, Advisory Committee, Board of Assessors and the Tree Warden as Special Municipal Employees

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8 beth January 3, 2020 at 10:59 AM

Going back to your initial questions about the new SME – Special counsel Rehekah Lacey was approved on 12/17 to represent the Conservation Commission on issues related to Park Central. Southborough Town Counsel Aldo Cipriano wrote:

since she is also the General Town Counsel for Hopkinton, she has requested Special Municipal Employee status in an abundance of caution, even thought, historically, Southborough and Hopkinton have never had any substantial or contentious legal issues.

Their letters (in the December 17th packet on page ) don’t seem to indicate any other conflicts – but you can see for yourself here.

Under the SME policy if she had any of the following conflicts, she was to submit a special disclosure form within 7 days:

Per the Southborough Board of Selectmen policy . . . all persons designated as Special Municipal Employees (“SME5”) must file this form for any matter or instance when the SME’s actions meet one or more of the following conditions:
1. Represents private parties before municipal board(s) other than his or her own board.
2. Acts as agent for private parties in connection with a matter of interest to the Town.
3. Receives pay or other compensation in connection with matters involving the Town.
4. Has a financial interest in a contract with a department which is completely independent of the department where they work.
5. Has a financial interest in a contract with his or her own department (or with a department which has overlapping jurisdiction with his or her department) and for which the Board has voted to grant an exemption pursuant to G.L Ch. 268 §20.

No such form has been filed, so presumably those conflicts aren’t considered to exist. If one develops, she is required to submit a form before the activity begins.

On January 2nd, Town Administrator Mark Purple sent the Town Clerk a memo on the new SME, along with the agenda packet from the meeting which included the public notice and the relevant letters. The memo asked Mr. Hegarty to share the information with the Ethics Commission.

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9 beth January 2, 2020 at 12:37 PM

I gave you the minutes link, but it was Bonnie Phaneuf, Bill Boland, and Salvatore Giorlandino.

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