HARVARD -- Selectmen at their meeting Tuesday night invited Town Counsel Mark Lanza to give them a close-up look at the Massachusetts Conflict of Interest Law, with particular emphasis on the appointments they make to other town boards.
The issue has arisen several times recently, as it does "all the time, in small towns like Harvard," Lanza said. The Ethics Commission calls it "self-dealing," he said, but he's not sure that term is always appropriate.
Defined broadly, the law applies if a municipal employee has a close associate or family member with a financial interest in a project -- say that person is in Real Estate or the employee lives in the historic district in which a project is being proposed, Lanza explained, offering an example from another town where the issue came up.
In that case, four of seven members of the Historic Commission lived in the district and two others were neighbors to the abutters. Although the conflict was not "intuitive," the outcome of their decisions could affect property values. "It was a controversial project and the opinions expressed could have an impact," he continued. So the commissioners had to file a disclosure statement.
The same thing could apply here, he said, unless the financial interest is deemed by the selectmen to be "so inconsequential" that it doesn't call for a disclosure statement. Often, when the issue is raised, it's done as a "challenge," Lanza said. But mostly, when the conflict comes up, it's one in which the folks involved were unaware.
The selectmen had questions, both general and specific.
Lucy Wallace targeted a fairly common situation, when a School Committee member's child is in the school system. "Isn't that a conflict?" she asked.
"Only in the 'appearance of conflict' category," the attorney answered. The member's objectivity could be questioned. But the only "direct conflict" is financial interest.
That said, when an entire body such as Town Meeting votes on zoning, for example, it might be said that everyone has a financial interest. But the Conflict of Interest law doesn't apply, since more than 10 percent of the population is affected versus a "narrow range" of people, Lanza said.
In most instances, when the appearance of a conflict arises, a disclosure statement can solve the problem, he continued. However, if a member of the Affordable Housing Trust, for example, has been designated as a "special employee" by the selectmen, that changes the rules and if one member has been so designated, they all must be, Lanza said.
"We appoint a lot of people; should we be doing things differently?" Ron Ricci asked.
Lanza's answer seemed to indicate that the appointing authority was only responsible for handing out information so that all municipal employees know they are required to take Conflict of Interest training. But even for an attorney, it's a difficult law to pin down in terms of situations it applies to, he said.
Financial interest is the most common issue that comes up, and in most cases the individuals were not aware of a problem, Lanza said.
Chairman Marie Sobalvarro asked if the statement of financial interest document the board had on the table was the "disclosure" Lanza was referring to? And Wallace wanted to know if the selectmen were the only ones who should file it, even for boards they don't appoint.
Lanza's answer to both questions was yes.
"What is our legal obligation to react to an accusation of a conflict of interest?" Leo Blair asked. "Do we need to report it to the Ethics Commission?"
"No," Lanza said. "If you do, it will be treated as a complaint."
"But do we have to inform other board members?" Blair pressed.
"Not as an obligation, but I would strongly advise it ... as privately as possible," Lanza said. "If an accusation is made, it's very serious," he said, adding that in some cases, it's more than an ethics violation, it's a felony.
"So, say I get an e-mail ..." in which such an accusation is made, Stu Sklar ventured.
Lanza suggested he take it up as a private matter with the chairman of the other board.
"As a board, in a case where someone unwittingly crosses the line, there should be a discussion," Lanza said, and memos should be sent around accordingly. He offered to help the selectmen draft the memo.
Ricci said it's key to make sure the people who need to know are informed. "It could be a perfectly innocent mistake, but we need to get the word out," he said.
It's out now, more or less. But it was not clear what had come up to spark the conversation. However, Blair stated, for the record, that even though he was not an investor, he had been asked and had considered it.
He didn't identify the project he was talking about, but it was obvious that everyone at the table knew. And when the board discussed the Community Solar Garden project, which was the last item on the agenda, Blair left the room.
Asked to clarify the issue in an e-mail Wednesday morning, Blair replied: "Worth Robbins asked me to consider an investment in Solar Garden 2. I am in the process of evaluating the merits of an investment which precludes me from participating in any deliberations relative to the current Solar Garden project. I left the room to recuse myself from the proceedings to avoid any possible conflict of interest. My reference to having been asked to invest but not being a current shareholder was to correct an error in the minutes from our last meeting. Julie (selectmen's executive assistant Julie Doucet) had indicated that both Stu (Sklar) and I were currently shareholders. Stu is. I am not."
Sklar also left before the solar garden discussion.