Begun With Good Intentions, Waiver Proposal Raises Ethical, Governance Issues
A few weeks ago, Peter Cunningham, Chairman of the Board of Selectmen and long-time member of the board sought fellow board members approval to waive construction fees of about $4,500 for reconstruction of Blood Farms. Such fees can legally be waived by the Town Manager, according to the Charter.
The waiver of these fees was not solicited, desired, or encouraged by the owner of Blood Farms, but was purely the initiative of Chairman Cunningham. [See Peter Cunningham's Letter to The Editor on page 2.]
According to accounts of the waiver discussions, Selectmen Anna Eliot and Stuart Schulman signed off on the plan while members Jack Petropoulos and Joshua Degen were adamantly opposed to the waiver and declined to support it for these reasons: First, because of its non-public nature; Second, because it's a violation of the Open Meeting Law, and third, because it favors one business above others.
According to Selectman Petropoulos, later confirmed by Selectman Degen, the plan to waive the fee was pursued by Chairman Cunningham through a campaign of phone calls. According to both dissenting Selectmen, it was clearly stated by Cunningham that the waiver would not be discussed in open session, and should not be discussed with any non-member of the Board.
When contacted by phone, Selectman Petropoulos said, "The idea of waiving building fees is kind hearted - the idea itself is not the problem. The problem lies in advancing the idea of spending public money to benefit a private business and, more specifically doing so outside of the view of the public." He went on to say, "This is a violation of the Open Meeting Law which prohibits deliberation through "oral or written communication between or among a quorum of a public body on any public business within its jurisdiction."
The Attorney General's office confirms that the term 'jurisdiction' includes matters in which the Board may have influence. The purpose of the Open Meeting Law is to ensure that the public is aware, not of the outcome of a deliberation, but of the deliberation itself.
Selectman Degen said that the idea turned unacceptable when it became clear that, not only was it being done "outside of Open Meeting, but deliberation was expressly being hidden from the public." For both dissenting Selectmen, the final straw came when Chairman Cunningham warned Selectman Petropoulos not to discuss it publicly in any forum.
Selectmen Degen said, "This issue warrants serious discussion amongst the Board of Selectmen in an open meeting; not just this specific issue but the expected code of conduct of an elected body and their obligation to uphold the open meeting laws." He added, "After town meeting when the Board returns to regular weekly sessions, I will bring forward a request for this topic to be added to a future agenda for a full airing."
This story became public when The Groton Herald received a phone call from a local businessperson last Tuesday, bitterly complaining about the waiver plan, saying it was unfair and discriminatory because he had been held to a strict and expensive interpretation of the bylaws for his own construction project. The Groton Herald then confirmed plans for the waiver with four members of the Board of Selectmen and wrote an editorial published last week decrying the granting of administrative waivers of fees without discussion and approval in open meeting.
The Herald's editorial did not mention individual Selectmen, thinking the issue was more important than the views or actions of individual board members. In hindsight, The Herald Editorial Board regrets not clearly and unambiguously identifying the person who was driving the waiver proposal. Still, The Groton Herald stands behind the sentiments expressed in the editorial.
Although the proposal to grant a waiver was done with the best of intentions and nobody doubts the fundamental honesty of Peter Cunningham or any other member of the board, the proposal raises many important questions that need to be addressed and resolved by the whole Board and the voters.
