It has come to this blog's attention that for the first time we have a selectman, who is not only the ex-officio liason to the planning board, but also vie-chair of the ZBA!
Now for those who don't know, the ZBA is supposed to remain independent due to their legal ability to overrule decisions of both the planning board, and the selectmen.
It would appear to be a clear conflict of interest for one man to sit on all three, even if he recused himself. When elected, selectman Friel should have resigned from the ZBA. Failing that ZBA chairman, Polito, should have recognized the inherent conflict and asked him to resign, but, of course, this IS Atkinson, and neither of those circumstances happened.
So Let's take a recent case history here in town; The selectmen decide to violate conservation deed restrictions on town owned land, by not just allowing, but advocating for a business owner to put up an enormous sign, on town property. The selectmen go to the planning board and speak on the business owners behalf. The case goes to the ZBA, where the vice-chair, is someon who has had a hand in this decision already at two stages of the process, would this contaminate the fairness of the process? Yup!
But as the selectmen have told you for the last 5 years, no one in town cares about conflict of interest, but for two people with vendettas. Dont expect the conflict of interest committee to do anything, they have been looking the other way for years.
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ATKINSON's Vietnam HONOR ROLL as VOTED and PASSED by 2005 Town Meeting and re-approved at Special Town Meeting Sept. 12
EDITORIAL-
A voice of compassion, an example of fairness and reasonable government.
One who believes in the strength and comfort you, your children and your family can draw from good government leadership.
A person who knows Atkinson is our home -- our most important possession that must be preserved and protected through fair taxes and sound community planning and where our children must be safe to grow to become a new generation of leaders.
One who knows that the citizens of Atkinson are all neighbors with her leadership to be dedicated and responsive to all.
One who believes that when those from Atkinson have served our nation and honors are deserved, those honors must be given.
In Valerie Tobin, we now have a leader we know we can entrust with these responsibilities because they are part of her character.
It is our honor to endorse Valerie for election to Atkinson’s Board of Selectmen.
Just a note for those who wish to count the deer.
In January 08 this blog had 16,000 hits and 1,500 unique visitors (for the month).
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In 2007 this blog had over 100,000 hits and 5,750 unique visitors (for the year).
EDITORIAL-
"I offer nothing more than simple facts, plain arguments, and common sense . . ." [TP, 1776]
We take no small measure of umbrage at such a hostile official act against this BLOG’s patron. Therefore, a timely Editorial comment is both appropriate and necessary.
Discussion of Atkinson’s financial direction, from any viewpoint, is fundamental and encouraged and we will always attempt to limit and correct errors.
However, Righteous indignation towards purported error of such inconsequential nature is not appropriate.
The ENTIRE car deal is problematic. If it was caused by poor judgement, improper exercise of authority, neglect or mistake or even specious reasoning, this will never trump the facts that the entire questionable transaction started and ended within a very small circle of confidants.
We find the entire circumstances surrounding the disposition of the police Cruiser highly irregular at the least and the "explanations" somewhat trifling and exhaustive of our intellect.
Mr. Consentino: It’s time to go. Being Chief of Atkinson’s Police Department is NOT a birthright. That is a fabled legend of yesteryear.
Historically in Atkinson, police chief appointments were made "under the hand of the selectmen" for terms of one year at a time, as was also the case in the beginning of Mr. Consentino’s assorted and discontinuous stream of appointments to this position.
Your only remaining credential established on a claim of indispensability has faded.
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LETTER
"To All Atkinson Residents,
I am writing to ask for your help. A member of the Atkinson Police Department needs our help. I am here to ask for your help in Corporal John Lapham's fight for his life. As you are aware, John has been diagnosed with Leukemia. He has been once again hospitalized with an infection that is threatening his life. He is one of the bravest people that I have ever met. He has never asked of anything from the residents of the town. Now is our chance to step up and help both him and his family out. As everyone is aware John has been out of work for a few months. His family has been busy helping John to get better. He needs our help, and I am hoping that this town can step up to the plate and help. From the moment that I met John, I have admired him. He does alot, but never asks for anything in return. He has helped so many people in this town. I for one am one of those people. Please help him.
There is a fund set-up in his name at TDBanknorth in Plaistow. Any amount will help John, while he is out of work. It would be great if this town could help ease a burden off his wife.
Thank You
Also if anyone would like to send a card, please address it to:
John Lapham
c/o Dana-Farber/Brigham and Women's Cancer Ctr.
Inpatient mail
75 Francis Street
Boston, MA 02115
United States
Please show Corporal John Lapham, that this community can stand up and show our support to those in need. I for one, miss John and can not wait until he can get better and return to work. Please show him that we support him. "
28 comments:
Would you exspect anything different from Polito? He is just as bad as the chief, if not worse. This topic is upseting to hear. I gave Friel the benifit of the doubt.
And you should give him the benefit of the doubt. Maybe he didn't realize, and when he is told about this, or sees it here, will do the honorable thing and resign.
I would suggest a wait and see approach.
to hear that from you of all people, Mr. Acciard, you didn't do that with the chief did you?
Actually I DID do that. I first asked him if he would step aside at Candidates night 2003. He said he would.
When he approved his own request for withdrawal from the donation account in March of 2004, I again asked him if he would step aside, he said he didn't have to.
I asked the conflict of interest committee to tell him to step aside on police issues, and they said; "but it is the chief"
So I asked the Court, and the day of our hearing, he finally agreed.
So that was a different circumstance, I asked him 4 times to recuse himself, and each time he refused. In Jan. 2005 I offered him a settlement, if he would recuse himself I would drop the case, he refused.
Who knows, maybe if he had to pay for his own lawyer, like I did, he might have don the right thing.
None of us would be here if the Chief did the right thing years ago.........
I just read the towns Conflict of Interest Ordinance on the town website and it states the following reason for the ordinance.
...public office is not used for personal gain; and that the public have confidence in the integrity of its government members to perform their duties without conflicts between their private interests and those of the citizens they serve.
So I take it that the conflicts of interest that our COI committee deals with have to do with money. If no money is involved, the ordinance has no bearing on the matter. To say anyone in town serving multiple committees/depts/offices, etc, has a conflict of interest because they serve multiple offices has nothing to do with our town's COI Ordinance unless $$money$$ is involved and he/she benefits personally or through a family member. That is my interpretation of the focus of the ordinance.
Mr. Acciard's comment regarding the chief had to do with PD department donation funds. Money was involved. That was the basis for the question of a conflict of interest.
Is there a specific RSA or town ordinance that restricts a selectman from serving on the ZBA? Either Mr. Friel is donating his time very generously to the town, or he has some evil plot to take over the world.
Well now I think he should resign from both posts. I personally don't want him in any position at this point. Conflict of Interest is one of the most sacred issues on the table and I do not believe that he didn't know. I didn't know so shame on me for voting for him.
Money is not the only determining factor for a conflict of interest to exist. It is not defined that way so you are interpreting the law, putting your own spin on it, not your place to do so. I think that power and ego are often the reason that people sit on these boards....to gain influence and to obtain favors.
It is however, strictly prohibited for any town official (i.e., Friel) to "Knowingly participate in town business without disclosing all potential conflicts of interest.. ". Why wasn't this raised at election time? I do not like the incestuous nature that permeates this town.
"No elected or appointed official or employee whose salary is paid in whole or in part from the town treasury shall represent private interests.." The SELECTMEN allowed a private (Lewis) to put a (gawd awful ugly) sign on town land. That is PROHIBITED.
Interesting this topic is, and interesting to see how Mr. Friel reacts to his position on this matter.
Friel's being able to cast a vote on the ZBA, or influence other ZBA votes, is definitely a conflict of interest. He should definitely step down. Recusing himself from a particular vote doesn't remove the opportunity to influence other ZBA votes.
ZBA members are supposed to have no connection to other town boards. That is because they are supposed to be an appeals board from decisions of those other town boards, like the Planning Board or the Board of Selectmen whose employees include the town's various inspectors and code enforcement officers.
Friel, as a selectman, should have no ZBA vote on appeals of any Planning Board ruling or of any appealed decision of inspectors or code enforcement officers, or of improper decisions by the BOS.
Friel being on ZBA is like an athlete being both a member of an athletic team and also serving as game referee. TOTALLY UNACCEPTABLE!!
It's also like a Defendant or Plaintiff in court also getting to serve on the jury, or as judge.
TOTALLY UNACCEPTABLE!!
What's with Friel anyway. He surely knows that what he's doing is wrong. Even the appearance of such wrong doing is enough to cause a loss of confidence in the integrity of the ZBA.
Does Friel have a power complex? There is serious harm to the town when town power is concentrated in the hands of such a few people.
When Friel ran for selectmen, it was implied that he would put his total effort into being a selectmen--not just expanding a power position for himself. He should honor the commitment to being a selectman and not engage in power grabbing by trying to hold on to power positions in conflict with his being a selectman.
Well, then I guess I am an idiot and am incapable of reading the town ordinance.
For a conflict of interest to exist, someone needs to shine some light on the precise accusation here. What, exactly, is the conflict? Someone is saying Friel benefitted in some way. How EXACTLY?
Here's the bottom line: If there is no financial interest/gain to him or a family member (and family member is defined in the ordinance), then there is no conflict according to our town COI ordinance. That's the way it is, plain and simple. But please don't take my word for it, you can read the ordinance for yourself on the town website or you can call the town hall and ask for clarification if you disagree.
Someone please provide the RSA or town ordinance that prevents a person from holding multiple positions in town. If there is none, this is a non-issue.
You crack me up. You are in such hurry that you couldn't even spell check your comment.
You people here on this blog draw your own opinions and then try to ferret out what only facts you want to support your previously drawn opinions. from what I can tell -there are about 9 of you that are the only ones that will back up each other with your shallow opinions.
The holding of multiple offices does not have the remotest association to the Atkinson COI Ordinance. That is NOT an issue here. The Arkinson COI Ordinance Is useless at best. It has been stripped of all meaning and the remainder has never been applied to any effect.
The issue arises because the NH constitution and statutes clearly prohibit these conflicts.
New Hampshire Constitution Art. 35: “It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit. …..”
“When interpreting a zoning ordinance and determining the appropriateness of a variance, the ZBA is acting in a quasi-judicial capacity. See Piecuch v. Manchester, 114 N.H. 8, 9-10, 314 A.2d 642, 643 (1974); Supry v. Bolduc, 112 N.H. 274, 275-76, 293 A.2d 767, 769 (1972). “
New Hampshire RSA 500-A:12 (JURORS) Examination. –
I. Any juror may be required by the court, on motion of a party in the case to be tried, to answer upon oath if he:
(a) Expects to gain or lose upon the disposition of the case;
(b) Is related to either party;
(c) Has advised or assisted either party;
(d) Has directly or indirectly given his opinion or has formed an opinion;
(e) Is employed by or employs any party in the case;
(f) Is prejudiced to any degree regarding the case; or
(g) Employs any of the counsel appearing in the case in any action then pending in the court.
II. If it appears that any juror is not indifferent, he shall be set aside on that trial.
Several apply.
Questions?
Hey countrylawyer -
You crack me up. You are in such hurry that you couldn't even draw a logical conclusion.
You countrylawyers here on this blog draw your own opinions and then try to ferret out what only facts you want to support your previously drawn opinions. from what I can tell -there are about 0 of you that CAN back up each other with your shallow opinions.
Maybe the countrylawyer ought to take a look at State and Federal law. Isn't it fun to read comments of those who cannot format a solid argument but know how to run spell check and think they are so-in-the-know?
country bumpkin maybe, lawyer - hardly.
Countrylawyer should maybe be quiet until they know what they're talking about, the person they're criticizing seems to be a valuable resource as it seems to be the same person that gave Carol Grant advise to strengthen/fix the new water ordinance. This person also has a great knowledge of the law, and could help a lot here. Maybe Countrylawyer should keep their mouth shut until they can contribute something of equal value, besides the idiotic and needlessly divisive comments.
To the last anon,
Please allow me to try and explain the conflict, as I have had some success trying conflict cases in Court.
The seminal conflict of interest law in NH. rests in two cases; Littleton v. Taylor, and Winslow v. Holderness planning board. I will address the NH Supreme Courts ruling in Winslow first; The Court stated that;
"the demand of the State Constitution that all judges be as impartial as the lot of humanity will admit applies similarly to members of boards acting in a quasi-judicial capacity. N.H. CONST. pt.1, art. 35"
"the Supreme Court applied the statutory test established by State law for disqualification of members of zoning boards of adjustment, which requires that they must meet the standards that would be required of jurors in the trial of the same matter, RSA 500-A:12, II, 673:14(supp. 1983)"
"the Supreme Court held in Rollins v. Connor, 74 NH 456(1908) that mere participation by one disqualified member of a tribunal was sufficient to invalidate the tribunal's decision because it was impossible to estimate the influence one member might have had on his associate."
" The Supremem COurt's decision in Levesque v. Hudson, 106 NH 470(1965) applied the rule used to determine the validity of jury decisions where a member of the jury was disqualified to a case involving the disqualification of a member of a zoning board."
RSA 43:6 states;
"No selectmen or other official shall act, in the decision of any such case,(case defined as"affecting the conflicting rights or claims of different persons" per RSA 43:1) who would be disqualified to sit as a juror for any cause, except exemption from service, in the trial of a civil action in which any of the parties interested in such a case was a party."
Hope all this helps you see that our town code of ethics ordinance is a joke. It has NEVER been enforced against blatent violations and the committee has allowed it to be used as a political tool to bash those out of favor. Refer to state law instead. It worked for the chief.
country lawyer sounds like our Town Administrator to me.
I think it is too early to make a decision about Mr. Friel. A lot of thing are new to him and lets give him the benefit of the doubt on this issue.
I thought he should have spoke up when Mr. Childs was giving the road agent a hard time but after thinking about it, I decided that maybe he didn't know the history of the 2 families.
If anyone cares, I think Mr. Sullivan is trying hard to do the right thing, Mr. Friel is trailing him and Mr. Childs wouldn't know the right thing if he stepped on it.
CODE OF ETHICS
Once upon a time 9/19/03.....the code of ethics committee, adopted in accordance with RSA 31:39A, found a selectman/woman in violation of 5 separate ordinances of the code of ethics Sections V, V A1, V A2, V A3, & V A12. Violation of one would be enough to have that person step down.
When presented to the Selectmen at that time their response was....."the code of ethics is simply an opinion......we the selectmen can do whatever we want". Apparently this was not enough to have that person step down. Rules and processes however did change and that person did not put their name on the ballot again.
It is not the code of ethics that is ineffective, it is the enforcement of the code of ethics that was lacking then and seems to be missing today.
Do you mean the moderator ?
The countrylawyer is exactly and merely that. I expect more.
Thanks to anon @ May 28, 2008 12:29 PM for posting the constitutional and court information about the requirement for impartiality, also to Mark Acciard for similar info. I had in mind to look up this stuff and post it but I didn't know when I would find the time.
The only thing I would like to add is that conflicts must be evaluated on a case by case basis.
The fact that Mr. Friel might have a conflict in some cases is not grounds for saying that he should not serve on the ZBA at all. All members of the ZBA are town residents. All have friends, relatives, or customers who own property in town and who might appear before the ZBA. Thus any ZBA member might have a conflict in any particular case.
Yes, Mr. Friel would have a conflict in judging a case that the selectmen had dealt with before it went to the ZBA. But most ZBA cases are not like that. Most cases are just routine things where somebody wants to add a room to their house and they don't quite meet setback requirements or whatever. No conflict (because of being a selectman) there. And it is those cases where other ZBA members might have conflicts, because it is their friend or neighbor who is applying.
So as long as Mr. Friel is careful to recuse himself where he can not guarantee to be impartial according the the constitution and the RSAs, I see no problem with him continuing to serve on the ZBA. As noted the ZBA is a quasi-judicial body and it requires experience and knowledge of law to serve effectively. If he has been doing a good job on the ZBA then there is no need for him to resign simply because he is now a selectman.
to anon 5/29 1:42 AM
Not exactly!!
A selectman being on the ZBA has the appearance of being a conflict of interest. He should step down from the ZBA or be removed as a selectman. The appearance of a conflict is all it takes in the business world to REQUIRE a person to remove him or herself.
I am tired of bending the rules or coaxing people to act above reproach.
Last I heard there was an open seat on the ZBA. If it is still open, then why doesn't someone here volunteer to fill it? While we are at it, a second person who is so concerned about Friel's conflict should volunteer to fill the job Friel is doing so that he can step down. Two vacant seats might be a problem, ya think?
Any volunteers out there to do the job? or do you just prefer to gripe on the blog?
Too many gripers and not enough volunteers to do real work. That is the problem I see.
I didn't know there was on opening on the ZBA. Is it posted somewhere? How would an ordinary resident know? Are these open positions posted on the town website? I would think that would be the most obvious place but I also think they don't really want the general public to know.
This is anon@May 29, 2008 1:42 AM
To anon@May 29, 2008 9:14 AM
You wrote only "Not exactly!" in response to my post.
Is it that you don't like my conclusions but can't rebut any specific points, or are you just too lazy to detail your objections to what I wrote.
To anon@May 29, 2008 9:24 AM
You say that a selectman being on the ZBA has the appearance of being in conflict of interest. That's just your opinion. The propriety of somebody holding two positions is determined by state and local law, not your opinion or mine. State law ordains that certain positions can not be held by the same person, e.g. treasurer and town clerk. There is no prohibition against being on the BOS and ZBA. State law allows the town to pass an ordinance that is stricter than state law. The town has not done so. So there is no problem with Friel being both on BOS and ZBA as long as he recuses himself on any particular case where his impartiality would be in question. You say that he should be "removed" if he does not resign voluntarily. There is no legal basis whatsoever to force him to resign one office or the other if he refuses to do so voluntarily.
If this really bothers you that much, why don't you write a petitioned warrat article to strengthen the town's conflict of interest ordinance to prohibit a selectmen from being on the ZBA. You might be able to get it on the warrant for the special town meeting this summer.
To anon@May 29, 2008 12:52 PM
You say that "they" do not want the public to know that there is a vacancy on the ZBA. Who is "they"? Why would anybody want to keep the vacancy a secret? There's way too much paranoia on this blog. There's no question that towns don't communicate well. Atkinson and every other town. It's because nobody in town government has a defined responsibility for effective communication with the public. It's not a matter of conspiracy, it's that all towns are run on a shoestring. If there were somebody who had a responsibility for communications and actual time to do it, I'm sure you and others would be complaining about "overstaffing" in town government or some such thing.
To anon @ May 30, 2008 2:09 AM
From anon @ May 29, 2008 9:14 AM
Simply stated. Mr. Friel, having accepted the office of Selectman, represents the interests of Atkinson and NOT the general interests of the ZBA review in any instance, and is therefore disqualified.
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