APPENDICES
May 23, 2006
Mr. Jonathan L. Carter
Kittery Town Manager
P. O. Box 808
Kittery, ME 03904
Re: Conflicts of Interest
Dear Jon:
You have asked for an opinion addressing the issue of conflicts of interest as they may apply to members of our municipal boards. I will direct my comments principally to members of the Planning Board, Zoning Board of Appeals, and Port Authority. Each of these boards [along with other things they do] deal with various rights and property interests of applicants seeking approvals or permits to undertake some activity.
As a general statement, no one would doubt that conflicts of interest as well as the appearance of conflicts of interest must always be avoided by members of any of our boards. Members with real or apparent conflicts should refrain from participating at board meetings on pending matters in which a board member would appear to have a conflict. Some conflicts may be quite obvious to the member and the board. Others may be apparent to the member but not to the board.
FINANCIAL CONFLICTS
Section 12.01 of the Kittery Town Charter as well as Title 30-A M.R.S.A. ' 2605 address the issue of conflicts of interest directed primarily at direct or indirect financial conflicts. Section 12.01(2) requires a board member to disclose his or her financial interests [and that of extended family members] and abstain from all board discussion, voting, and debate on any such conflict issue that falls within the statute. Since I don't believe statutorily defined financial conflicts have generated any real issues the boards, I will not get into these unless you wish me to.
NON-FINANCIAL CONFLICTS
The Kittery Planning Board, Board of Zoning Appeals, and, to a lesser extent, the Port Authority deal with issues directly involving the adjudication of important property interests and rights before it. It is essential for board members when making judgments and determinations on these applications and appeals to act in a fair and impartial manner. Applicants are entitled to nothing less. Moreover, it is important that board members be perceived as acting fairly with no undisclosed motivations when dealing with these issues.
Board members determine facts and apply evidence to existing ordinances, statutes, codes, and regulations to determine a result. The integrity of the boards' decision-making process depends on the impartiality and fairness of the individual board members throughout this process. Applicants must be able to have a degree of confidence that whatever the outcome of a particular board decision, it is rendered fairly without no preconceived notions or biases for or against an applicant's proposal.
Conflicts can take many forms. A board member, for example, may sign a petition or speak out publicly for or against a matter that is likely to come before the board on which that member sits. If this happens, the member puts himself or herself in a position of trying to appear as an objective and impartial decision maker on an issue that the member has already taken a position or it appears that the member has. Again, by way of example, a board member may become involved as a party to some litigation for or against a particular cause. The member's participation in such endeavors merely leads to speculation as to whether that member can be fair and objective should that issue come before a board on which that individual sits. This is so even if the litigation is dropped or later withdrawn. A board member
may also have some personal stake in the outcome of a board decision, that is, some personal benefit from a particular result. Decisions under these circumstances tend to compromise objectivity and could reflect poorly on the member and the board. It could also create an opening for a challenge that could possibly jeopardize the board's decision.
PELKEY V. CITY OF PRESQUE ISLE
In Pelkey v. City of Presque Isle, the Maine Supreme Court dealt with a claim of conflict of interest by a zoning board member in the Town of Presque Isle, Maine. Prior to that member's appointment to the zoning board, the member had been a vocal opponent and had spoken at public hearings against a project that later came before the zoning board for considera-tion. By that time, the opponent had become a member of the zoning board and proceeded to participate and vote on the matter. The Supreme Court reversed the decision of the board and remanded the matter back to the board for a new hearing "before only those board members who, as then members of the public, did not oppose or support [the] application at previous hearings." Whether the board member actually believes that he could deliberate fairly and
impartially on the issue before the board despite an earlier position against the project was not really at issue. The appearance of a conflict was manifest and out in the public for all to observe. As shown by the Pelkey decision, it is difficult for a board member to appear fair and impartial when the board member has taken a pre-board hearing positions for or against a particular matter. The price board members pay for serving on boards is that they must refrain from taking positions on matters that are likely to come before the board for adjudication.
SUMMARY
In an earlier opinion, I stated that there was nothing wrong with having a conflict of interest. This is so. Conflicts may develop from time to time at any time. The problem is not that a conflict arises. It is how that conflict (real or perceived) is handled once it does arise. Whether how that conflict is acknowledged or disclosed and how it is dealt with is the important thing.
The only real way of policing and assuring compliance to any conflicts rule is for each member to be honest and forthright about disclosing such situations.
I believe that over the years our various board members have been very mindful of their responsibilities on these issues. There have been little if any problems that have arisen involving board member conflicts. Frankly, the best guide in all these situations is a sound sense of honesty, fairness, and common sense as well as an appreciation for the fairness and integrity of a board's decision-making process.
Should you need for me to address any issues in more specific detail, please let me know.
Very truly yours,
Duncan A. McEachern
DAMcE/cn
TOWN OF KITTERY, MAINE
Phone: 207-439-1633 ext 329
Fax: 207-439-6806
Article XII. General Provisions
Sec. 12.01. Financial conflict of interest.
(l) General standard. All town officials shall attempt to avoid an actual or perceived financial conflict of interest by abstention or disclosure. The Town of Kittery establishes these provisions in addition to those set forth in 30-A M.R.S.A. Sec. 2605. (Added by vote of the people 6-11-02)
(2) Definitions. For the purposes of this Sec. 12-01 the following definitions apply:
Official means an elected or appointed member of a town hoard. Family member means an official's spouse, parent, child, sister, brother, stepparent, stepchild, stepsister, stepbrother, mother-in-law, father-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, and a person with whom any of the foregoing share a committed relationship. Financial interest means any direct or indirect interest involving at least 10% ownership in a public or private economic entity, or direct or indirect ownership or control of real property. (Added by vote of the people 6-11-02)
(3) Disclosure. If an official or family member has a financial interest in an issue before the official's board, the official shall disclose that interest and:
(a) abstain from all board discussion debate, and voting on the issue until concluded, or
(b) request a determination be made on the question if the issue involves a financial conflict of interest sufficient to disqualify the member from participation.
(c) An official involved in the negotiation or award of a contract does not have a financial conflict of interest when the contract is the result of a publicly advertised bid procedure. (Added by vote of the people 6-11-02)
(4) Determination protocol. Upon disclosure and request for determination, the determination is made by the board members present, excluding the member in question, by majority vote, unless a greater number is required by rule, ordinance, or this charter. If the vote favors disqualification the member is excused from all board discussion, debate, and voting on the issue until concluded and is recorded as abstaining. (Added by vote of the people 6-11-02)
(5) Record of conflict.
The board chairperson shall make a written summary of any abstention under this section and file the summary with the town clerk. The clerk must maintain this record for a period of 5 years. (Added by vote of the people 6-11-02)
(6) Penalties.
An official who violates any of the provisions of section 12.01 shall forfeit office and shall be ineligible for a period of 5 years thereafter to hold any town office or position.
The procedures for determination of violation are governed by:
(a) Sec. 2.09 applies to town council members;
(b) Sec. 4.07 applies to school members;
(c) Sec. 2.07 applies to council appointees.
(Added by vote of the people 6-11-02)
(7) Rights retained.
An official who is excused from an issue due to the provisions of this section retains the right to such participation as is afforded members of the public. (Added by vote of the people 6-11-02)
Sec. 12.02. Code of ethics and prohibited conduct.
(1) Equal opportunity. No person shall be appointed to or removed from, or in any way favored or discriminated against with respect to any town position or appointive town administrative office because of race, gender, age, nationality, handicap, sexual orientation, political or religious opinions or affiliations. (Amended by vote of the people 6-11-02)
(2) Impartiality. No person shall willfully make any false statement, certificate, mark, rating or report in regard to any test, certification or appointment under the personnel provisions of this charter or the rules and regulations made there under, or in any manner commit or attempt to commit any fraud preventing the impartial execution of such provisions, rules and regulations. (Amended by vote of the people 6-11-02)
(3) Wrongful monetary consideration. No person who seeks appointment or promotion with respect to any town position or appointive town administrative office shall directly or indirectly give, render or pay any money, service or other valuable thing to any person for or in connection with any test, appointment, proposed appointment, promotion or proposed promotion. (Amended by vote of the people 6-11-02)
(4) Political solicitation. No town official shall directly or indirectly, orally, by letter or otherwise solicit or assist in soliciting from any person in the employ of the town any assessment, subscription or contribution for any political party or political purpose whatever. (Amended by vote of the people 6-11-02)
(5) Withholding information. With the exception of information which is confidential by statute, no town official shall withhold information of any nature relevant to a matter before any board. (Added by vote of the people 6-11-02)
(6) Use of public resources. No town official shall use public resources that are not available to the general public for private or personal gain, e.g. town staff time, equipment, supplies or facilities. (Added by vote of the people 6-11-02)
(7) Gifts and favors. No town official shall, by virtue of public office or position, take advantage of services or opportunities for personal gain that are not available to the public in general. Examples of services or opportunities for personal gain are gifts of any kind, favors, promises of future gifts or gain. (Added by vote of the people 6-11-02)
(8) Penalties. Any person who violates any of the provisions of section 12.02 shall forfeit office or position and shall be ineligible for a period of 5 years thereafter to hold any town office or position.
The procedures for determination of violation are governed by:
Sec. 2.09 applies to town council members;
Sec. 4.07 applies to school members;
Sec 2.07 applies to council appointees;
Sec. 3.04 applies to appointees of the town manager.
(Amended by vote of the people 6-11-02)
Sec. 12.03. Summons before town council.
The clerks of the Supreme Judicial, Superior and District Courts may issue summonses for witnesses to attend and produce books, documents and papers at any meeting of the town council for the Town of Kittery at which a hearing is had in any matter regarding any alleged dereliction of duty by town officers or employees. (Amended by vote of the people 6-11-02)
Sec. 12.04. Oath of office.
Every official of the town shall, before entering upon the duties of the office, take and subscribe to the following oath or affirmation, to be filed and kept in the office of the town clerk:
"I solemnly swear (or affirm) that I will support the Constitution and will obey the laws of the United States and of the State of Maine; that I will, in all respects, observe the provisions of the charter and ordinances of the Town of Kittery, and will faithfully discharge the duties of the office of _________________"
(Amended by vote of the people 10-4-94; amended by vote of the people 6-11-02)
Sec. 12.05. Time of meetings.
No town board, including but not limited to the town council, school committee, planning board and zoning board of appeals, shall conduct business after 10:00 PM. This deadline may be extended to not later than 11:00 PM by a majority vote of the members present unless a greater number is required by rule, ordinance or this charter. (Added by vote of the people 6-11-02)
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