Council
to seek clarity on conflict of interest issue Library Trustees also acting as GPLA directors
By Elizabeth Prata
Gray--At what point when citizens perform double and
even triple duty on various Boards and Committees
does that duty conflict? That was the question that
Vice-Chair of the Town Council Andy Upham raised Tuesday
night at the regular Council meeting when he wondered
of Library Trustee Peter Gerardo and Ray Clark's duty
both as Library Trustees and GPLA Directors conflict.
The Town of Gray appoints members to Committees. These
committee members labor on behalf of the citizens
and answer to the Council. Some committees are quasi-judicial
such as the Zoning Board of Appeals, the Planning
Board, and the Board of Assessment Review. Other committees
labor in an advisory capacity.
The Gray Public Library has a Board of Trustees, and
they serve the interests of the Library and answer
to the Council. Ray Clark and Peter Gerardo are Library
Trustees.
The Library Trustees decided to form a tax-exempt
corporation that would be separate from the Library
but would allow the corporation to become a fundraising
arm that supports the library. To that end, the GPLA
(Gray Public Library Association) is a separate, tax-exempt
corporation that is seeking to accept the Trusteeship
of the Pennell Institute. The GPLA would be the de
facto owners of the building as an asset of the Trust,
not the Town of Gray. The GPLA would control the building
and then lease it back to the Town of Gray.
The lease negotiation process has begun, and Mr. Upham
wondered if the Trustees, who serve the Council and
citizens of Gray should also pull duty as negotiators
opposite the Town on behalf of the interests of the
Corporation.
The issue arose when the Council moved to make their
annual appointments to various Committees. Mr. Gerardo
is on the Library Trustee committee but also has been
dealing with the Council in regards to a lease discussion.
Mr. Upham wondered if the Council should make that
appointment, and moved to amend the Order to exclude
Mr. Gerardo's name.
He said that it would be prudent to review the GPLA's
articles of incorporation, delivered to Council as
the meeting opened at 7 p.m. He said that until the
moment the Council had received the Articles, that
"We did not know who was on the Board. In scanning
this now, it seems that there might be an incompatibility
of office." He read from a memo that had been
previously dispersed by Town Attorney Bill Dale that
discussed the issue and advised officials to refrain
from conflicts and official incompatibilities.
In 1990, The Maine Municipal Association weighed in
on the topic of 'incompatibility of office' and distinguished
it from the more well-known term of "conflict
of interest." They wrote in an article in the
Maine Townsman, "There are certain positions
in municipal government, however, which may not be
held simultaneously by certain other officials. Although
the concept of "incompatible offices" is
often described as a "conflict of interest",
there is a significant difference between these two
situations, particularly when viewed in the light
of governmental ethics. As has been discussed, a statutory
conflict of interest concerns a municipal official's
divided loyalty between his or her financial self
interest and the public interest. The common law doctrine
of incompatibility of office is also intended to assure
uncompromised loyalty, but this time the tension is
found to exist between the legitimate duties of two
separate offices which no single individual - no matter
how capable, well-intentioned or altruistically motivated
could be expected to perform with undivided loyalty."
Mr. Upham's concerns discussion drew lengthy comment
from Manager Mitchell A. Berkowitz, from fellow Councilors,
and from citizens.
Mr. Berkowitz went to bat for Mr. Gerardo and Mr.
Clark, saying that the Council should pass the Order,
unamended, because excluding a person from the opportunity
to serve in office would have a chilling effect on
others who many want to serve. He also said that "You're
begging the question in a small town on exactly what
is a conflict of interest." He also did not agree
with Mr. Upham's interpretation of incompatibility
of office statements in Town Attorney Bill Dale's
memo, saying that that is applicable only to Councilors.
Pam Wilkinson spoke up for not deleting the name from
the appointment schedule. She said "I don't see
a lot of people beating down the doors to be on committees
and the names should go forward," she said.
Richard Barter said that in questioning whether there
was a conflict, that the Council is impugning the
reputation of a fine individual and rendering him
guilty.
Councilors Skip Crane and Chair Gary Foster were both
uncomfortable with the notion of Council-appointed
Trustees negotiating opposite the people who appointed
them, but wanted to gain further clarification before
deciding.
In the end, Mr. Upham withdrew his amendment, saying
he should have contacted the individuals and raised
his concerns with them first.
The Council all agreed that the issue will be looked
into, and Mr. Foster, Mr. Crane, and Mr. Upham specifically
declared that they were uncomfortable with the two
Trustees pulling double duty.
