Bridgton: To recuse or not? Benefit is the key

By Gail Geraghty

Staff Writer

When does being prudent and cautious about conflicts of interest cross over from the sublime to the ridiculous? The Bridgton Board of Selectmen has recently had two occasions to ponder that question.

The first came at their Sept. 25 meeting, when the board decided, after receiving legal advice, that Chairman Paul Hoyt could participate in some, but not all, discussions and votes related to changes to the Salmon Point Campground lease agreement. Hoyt has leased a site at the town-owned campground for several years. The board said Hoyt was welcome to weigh in on changes that did not directly involve a financial, or “pecuniary” interest from which he could benefit, such as their decision to add six more sites to the campground. However, when it came to the issue of raising lease fees by 10%, both Hoyt and his fellow board members readily agreed there was a conflict of interest, and he should not be involved as a board member in either the discussion or the vote.

Town Manager Mitch Berkowitz, in a query to Maine Municipal Association Senior Staff Attorney Rebecca Warren Seel, put the question this way: “The issue of pecuniary interest does play into some of the issues but not all of them, and therefore, is the recusal ‘all or none,’ or can there be some (issues about which) they would recuse themselves and others to which they would fully engage?”

Seel’s answer, in essence, was that it was better to err on the side of caution. That’s because, in addition to the obvious scenario of a business venture in which a board member may have a financial interest, “there are many other scenarios…that could present a ‘pecuniary interest’ as interpreted and decided by the courts, she said. Seel said Maine’s Law Court ruled that in the common law standard of conflict of interest in Maine, the question to be asked is whether the official is “placed in a situation of temptation to serve his own personal interests to the prejudice of the interests of those for whom the law authorized and required him to act…”

Seel further recommended that, in order to adhere to the town Code of Ethics emphasis on avoiding even the appearance of a conflict of interest, any recused board member should abstain from both the discussion and the voting, and leave his or her seat and sit in the audience when it is taking place.

After reviewing that guidance, the board agreed that Hoyt ought not to be involved in fee-related questions, but could vote on non-financial operational policies related to the campground.

Woodward’s turn

The second occasion for a recusal decision came at the board’s Oct. 9 meeting — only this time, the board member whose recusal was in question, Woody Woodward, challenged the interpretation of the MMA’s legal advice. At issue was a question raised over whether Woodward should have voted to send proposed amendments to the Shoreland Zoning Ordinance to voters on Nov. 6, since he owns one of four lots in the General Development I Zone that were specifically mentioned in the amendments.

The MMA’s Amanda Meader wrote that she believed the selectman, who was given a financial benefit from passage of the amendment, should have recused himself from the vote, since he probably stood to gain financially as “passage of the amendment will relax the zoning standards such that the property will be easier to develop and therefore a more valuable piece of property.”

Not so, said Woodward, who said the new language would not allow him to expand or otherwise change his ability to use the lot. Woodward pointed out that the ordinance exempts the four listed properties from the requirement that they be at least 20,000 square feet for the simple fact that they are less than 20,000 square feet, and have been for decades. Their smaller sizes, all just over 5,000 square feet, are obviously grandfathered, and therefore wouldn’t be affected one way or another.

“In fact, if I voted against sending the ordinance to the voting public, I still would not benefit, since the current ordinance doesn’t help me as it now stands. There is no potential for pecuniary benefit to me, regardless of how the ordinance advances, and therefore there was no conflict of interest with my participation and/or vote.” Woodward pointed out that an email sent by one of MMA’s staff attorneys stated that the only way they could say there was no conflict of interest was if the amendment would have no impact on the current or future value of the property. This was such a case, he said.

The board, after debating that matter, agreed that it was not necessary to reconsider the vote.

Learning as they go

In a later interview, Hoyt said he’s glad these two conflict of interest questions have been debated at length, because for some time the board has needed more clarity on how to proceed when one of them raises the issue.

“It’s been well worth our while for us to go through it, because in all the reading I’ve done on the subject it’s clear that it is up to each board to decide” how they will handle conflict of interest cases. For example, he said, during the discussion of Salmon Point Campground lease fees, the board agreed it would be better for him to sit in the audience after recusing himself, rather than staying seated at the board. They also agreed that recusal from discussing and voting on an issue as a board member does not mean giving up the right, as a resident to comment on the discussion from the audience, as Hoyt did on several occasions.

And, he added, “It isn’t a one or done deal.” The same question, involving the same board member, can come up at any time, if new facts emerge, even if no conflict was mentioned by anyone at the time the issue was originally discussed. Hoyt cautioned, however, that “It could get ridiculous, and we don’t want it to be. In a small town, it’s very difficult not to have (at least the perception of) a conflict of interest, because everybody knows everybody. There’s conflicts all over the place, but what we need to go by is whether a benefit will be made by someone by voting on it.”

 

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