Town Counsel to BOS: Current PILOT negotiation strategy falls under OML; Request to rescind his “special” status

Two items in the packet for discussion at this Tuesday’s Board of Selectmen meeting caught my attention. Both relate to advice issued to the board from Town Counsel.

One item is to rectify an issue raised by the policy the board recently adopted. The other follows up on an issue that has been pending since last spring.

Special Municipal Employee status

Last month, selectmen adopted a policy for Special Municipal employees. It advises against granting SME status for powerful positions, including that of Town Counsel. As I wrote on Monday, the Town had already granted SME status to Town Counsel back in 2007.

According to a memo by Town Administrator Mark Purple, current Town Counsel Aldo Cipriano agrees with the board’s new policy. Purple wrote that Cipriano didn’t feel the special status was warranted. He asked for the board to rescind it. That is on the agenda for the November 5th meeting.

PILOT payment discussions

In March, Town Meeting voters passed a non-binding resolution on PILOT payments. It requested selectmen work with non-profits to increase their voluntary financial contributions to the Town.* Initially, selectmen planned to put together a PILOT Committee. In June, Selectmen voted to change that tactic to having the Chair and Vice Chair follow up to discuss PILOT payments with the private schools.

Leading up to that vote, they discussed that unlike a committee or working group, a Chair and Vice Chair could sit down with schools without public notice. Based on new advice from Town Counsel, it appears they were wrong.

Last month, Chair Brian Shea updated that the PILOT talks were on hold as Town Counsel looked into what form that could take. In the packet posted today, a memo from Cipriano explains that he was researching a selectman’s question as to whether Open Meeting Law would apply to meetings between school reps and the Chair and Vice Chair. He walks the board through his findings that the duo would be acting as a “public body”. Based on that, they would need to follow OML rules.

He indicates that is based on a number of factors and doesn’t apply to every time two selectmen get together or all working groups:

This analysis should not be confused with the interpretation that two members of a five member Board do not constitute a quorum under applicable provisions of the Open Meeting Law. It is also advised that what was created is not an informal focus group for a specific Town official which has been determined to be an entity not acting collectively.

The memo concludes:

An alternative based on prior advice of the Attorney General’s office to the Town Clerk is the assignment of one Selectman in a first step of general discussions with a response back to the full Board in public session.

Finally, given the nature of the citizen’s petition passed by the Town Meeting and the need to address the public’s right to know the progress of such PILOT payments negotiations, we
suggest, to the greater degree possible, that this be discussed in public session.

That item is also scheduled be discussed on Tuesday night.

You can read the memos (on page 38 and 42), plus the meeting agenda, here.

*The Citizen’s Petition Article to pursue PILOT contributions (Payments in Lieu of Taxes) was hotly debated last spring. The initial draft was intended by proponents to include “teeth”. To incentivize non-profits to work with the town, petitioners proposed that if selectmen were unsatisfied, they would pursue efforts to strip Dover Amendment protections. (The Dover Amendment allows non-profits flexibility to get around zoning restrictions. As I posted yesterday, St. Mark’s is using the amendment to request zoning waivers for a proposed 3 story dorm.)

Some officials and residents worried that threat would start negotiations off on the wrong foot. On Town Meeting floor, voters amended the Article to remove the threat. The revised Article passed.