Pelham - Windham News | March 30, 2012 - 5 Conflict of Interest Petition- continued from front page
The portion of the new ordinance included in Article 19, “reaches much more nefariously into the life of those who work, volunteer or do business with the town,” Campbell said. “It raises serious constitutional issues.” Campbell also said he fears that this portion of the ordinance “will chill the waters” regarding people’s desire to do business with the Town of Windham or to volunteer their services in assistance to the town. “It is clearly unconstitutional,” Campbell stated. “I don’t believe it would survive a constitutional challenge” in court.
Campbell said he feels
Windham has two alternatives in dealing with these issues regarding the conflict of interest ordinance passed by voters on March 13. Selectmen could either decide to call a Special Town Meeting to amend either or both warrant articles or they could petition Superior Court to make a declaratory judgment concerning certain language contained in those two warrant articles. The court petition could either be made by selectmen or a third party, Campbell explained, referring to someone who would be directly affected by the ordinance due to his or her relationship with town matters. “There would be no lack of potential plaintiffs,” Campbell said, meaning those who might be affected. “This ordinance is illegal and over- broad,” he stated. Campbell said he would not advocate for a repeal of the ordinance, only for amendments as deemed necessary to assure its constitutionality. “The goal would be to protect the integrity of the decision- making process and to maintain the spirit and intent of the ordinance,” while fixing the problems involving constitutionality, Campbell said.
Campbell said that holding a Special Town Meeting would cost less than petitioning Superior Court, but that the special meeting might not resolve the issues and only promote further arguments among those concerned. If the issues regarding constitutionality weren’t resolved as the result of town meeting action, it would still be necessary to petition Superior Court anyway. Sneider said that he
vehemently disagrees with Attorney Campbell’s statements in reference to the new Conflict of Interest Ordinance. “The articles were legally adopted,” Sneider said. “And town officials have no right to ignore them. They have a responsibility to uphold them,
like them or not.” Residents have a right to impose moral standards on town employees and officials and those who do business with the town, Sneider said, then faulted the town attorney for wanting to reduce the ability of voters to scrutinize the behavior of those covered under the new ordinance. Sneider said Campbell “misread the law and misinterpreted covered person.” Sneider said Windham’s new ordinance is consistent with other town’s ordinances. “Attorney Campbell’s statements are repugnant to the democratic process,” Sneider said. “The people have voted and the vote should stand.” Sneider also said, “There are people in this town who make this ordinance necessary.” “These revolving door politics must end,” Sneider commented. “What I say and what I write
is my best opinion,” Campbell responded. “Mr. Sneider and I have different opinions. We are irreconcilably opposed.” Former selectman Dennis Senibaldi, who is also a town employee as well as a volunteer in numerous capacities, said he feels portions of the new ordinance are “a violation of my rights.” Senibaldi said he feels the new ordinance will result in businesses ceasing to donate time and materials for town functions. People and businesses that volunteer and donate items to the town do so “out of the goodness of their hearts,” Senibaldi said. “There are no evil intents.” Referring to Sneider, Senibaldi said, “I have a problem with someone standing at the podium and casting aspersions.” Senibaldi said he would go for a declaratory judgment from Superior Court, as opposed to holding a Special Town Meeting. “It’s a prudent expenditure,” he told selectmen.
Scott Bates, who is a
Windham resident, as well as a business owner and member of the Windham Economic Development Committee, is also one of the people who volunteers his time and services to the town. “I am concerned about how [the new ordinance] will impact my wife and me,” Bates said, noting his multiple roles. “I don’t want to have to pay someone else to represent me if I need to appear before one of the town boards. I want to represent myself,” Bates said, explaining that he worries about his various interactions with the town being construed as a conflict of interest based on the definition of “covered person.” Bates said he would have no patience with anyone who received preferential treatment because of his or her dealings
with the town. Anyone who is cheating the town should face the consequences, he said, but those who are doing no wrong should not be penalized. Windham resident and planning board alternate Vanessa Nysten, emphasized the need for a more stringent conflict of interest ordinance. Nysten said she brought a potential conflict of interest complaint to a town department head in 2010/2011 and was told that the department head didn’t know how to handle the issue. She then took the complaint to the board of selectmen. “The only selectman who showed any concern was Ross (McLeod),” Nysten said. One of the other selectmen, whose name was not mentioned, told her, “This ain’t the place,” she said. “Then where is the place?” she asked.
Resident Bob Coole referenced a portion of the new ordinance that says “covered persons” shall not discuss “any town matter” with anyone where there might be a perceived or real conflict of interest. “Does this mean that someone [a covered person] cannot speak at the deliberative session?” “Not necessarily,” Attorney Campbell responded. “But who knows?” Resident Tom Case noted that all members of the Windham Economic Development Committee are business owners. “Arguably, they would all be included as “covered persons” and, as such, would fall under the conflict of interest ordinance, Campbell stated. Selectmen’s Chairman Bruce Breton noted that there are 27 town committee appointments that are up this coming May, adding that “the chilling effect” of some of the language in the conflict of interest ordinance might result in volunteers not stepping forward or asking to have their appointments renewed. The new ordinance took effect immediately upon passage for any new town employees, volunteers or officials, but there is a 180- day waiting period before it takes effect for those already in office, volunteering or employed by the Town of Windham. “A decision needs to be made relatively soon, certainly within the 180-day window,” Campbell cautioned selectmen. “There are a lot of aggrieved third-parties.” Selectman Roger Hohenberger said he was in favor of holding a Special Town Meeting. While he agrees that a stronger conflict of interest ordinance was needed, he also said “sees the wording of the ordinance as a negative.” “It’s
causing a lot of undue stress on people,” Hohenberger commented. As for taking the issue to Superior Court, Hohenberger said he doesn’t want to hand the issue over to some judge who really has no idea about all that’s involved. Vice-Chairman Ross McLeod also said he preferred to hold a Special Town Meeting, saying he feels that would be a sufficient enough forum in which “to streamline the language.” McLeod suggested that a sub-committee be chosen to formulate possible amendments to the new ordinance. “It’s hard to get a broad interpretation from the court,” McLeod said.
Chairman Bruce Breton said,
“It’s better to bring before a judge and find out where the flaws are.” Selectman Kathleen DiFruscia said she was in favor of allowing the court to make the decision. “A lot of people have some very serious concerns,” she said. “The old ordinance needed some teeth,” DiFruscia said, “but this goes too far.” DiFruscia, an attorney, said she believes portions of the new ordinance are “unenforceable.” “I believe the townspeople will respect the board for seeking guidance” for the court, she added. Selectman Phil LoChiatto said he prefers to “have a judge weigh in.” “It’s a lot cleaner process,” he said. And while LoChiatto said he believes in the voting process, he is also concerned about how the new ordinance will affect his livelihood. “Obviously, my family comes first,” he said. “I need to fully understand the ramifications. Then, if I have to resign, so be it.” After more than two hours of discussion, selectmen voted 3 to 2 to petition Rockingham County Superior Court to issue a declaratory judgment on the language contained in the newly enacted conflict of interest ordinance. Voting in favor of petitioning the court were DiFruscia, Brenton and LoChiatto. Voting against the petition were McLeod and Hohenberger.
Attorney Campbell advised selectmen not to enforce
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the new ordinance until a declaratory judgment has been made. Campbell also advised any new businesses not to get involved with the town at this point in time. Campbell also said that town employees who also serve on a town board or committee may continue to do so as song as they don’t need to make an appearance before another town board or committee, in which case that could be construed as a conflict of
Campbell also stated that Superior Court might decide that the town doesn’t have “a ripe issue” at this point and, therefore, a declaratory judgment might not be made until a third party (town employee, official or volunteer) steps forward with a grievance, seeking equal protection under the law. “If the court doesn’t choose to make a judgment, we could still plan for a Special Town Meeting,” Campbell said.
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