Should a town councilor who owns and develops property vote on an ordinance change that could increase the value of a development he has pending before the town?
Of course not. That would be a conflict of interest, because the councilor could see a direct financial benefit from the decision.
But that’s exactly what happened in Falmouth, where three weeks ago the council loosened restrictions on lot sizes – but not before questions were raised about whether Councilor Fred Chase should have participated in the vote. Chase nonetheless voted for the change, and the revised rules passed by a one-vote margin.
Chase is a major land owner and developer. And when the council last week failed to reconsider its decision because none of the four majority voters – Chase, Council Chairman Tony Payne, and Councilors Faith Varney and Will Armitage – sought reconsideration, he defended his position.
“About a year or so ago, I made it clear I was working on a subdivision off of Brookfield Road,” Chase said. “I also made it clear that I was elected by land owners, that finally someone was going to represent land owners.”
Under advice from the town attorney, Chase claimed he incorrectly believed his pending subdivision plan would not fall within the the town’s reduced open space requirements. He also promised that he wouldn’t change his pending application to take advantage of the change.
Whether or not you take Chase’s word, he and the town may not be in the clear.
Chase’s action and the council’s decision to let his vote stand may have put the town’s subdivision rules on a less-than-solid foundation. At least one former municipal attorney with no personal interest in the Falmouth situation said it is “certainly possible” that the matter could end up in court.
It’s easy to connect the conflict-of-interest dots when a town council is awarding contracts. But even though the bar is set higher when a council acts as a legislative body, as it did in this case, the town attorney eventually told Chase “this is a problem under the conflict of interest laws” because Chase is not a mere land owner, he is a developer with an application pending before the town.
In the black-and-white legal landscape, Chase is probably in the clear. He didn’t hide his pending development and, on the advice of the town attorney, he said he mistakenly believed the old rules would still apply to the project and promised not to take advantage of the new rules.
But this is as much about the gray area, about public perception and doing the right thing, as it is about the letter of the law. The mere suggestion of a conflict should have been enough of a red flag for Chase to do the right thing in the first place. He should not have voted and should have accepted the fact that, because of the composition of the council, the amendment might have failed in a 3-3 tie.
From the council’s failure to seek its attorney’s advice early in the process, to Chase’s refusal to recuse himself and his incorrect assumption that his pending subdivision would be subject to the town’s old rules, to the council majority’s failure to seek reconsideration of the vote, this was the wrong way to handle a potential conflict of interest.