RECAP: MEETING OF THE OUTREACH, COMMUNICATIONS AND APPOINTMENTS COMMITTEE (7/1/19)

9:30-11:45. Present: Evan Ross (chair) (District 4), Alisa Brewer (at-large), Darcy Dumont (District 5), George Ryan (District 3) (recorder), Sarah Swartz (District 1) 
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Highlights

• OCA discussed, approved, and forwarded to the full council the town manager’s nominations for the Affordable Housing Trust Board of Trustees and the Public Shade Tree Commission.
• Following a request from District 1 Councilor Cathy Schoen, OCA determined that councilors will not be given time to address the committee without making arrangements with the chair well in advance of a scheduled meeting.
• Councilor Dumont offered a nine-point statement criticizing what she saw as an  effort by OCA and the Finance Committee to kill the nomination of Mary Lou Theilman to the Finance Committee. 
• Janet McGowan (District 5) spoke during public comment in support of the nomination of Mary Lou Theilman to the Finance Committee and  criticized what she saw as an orchestrated effort to keep Theilman off of the Finance Committee. 
• The discussion of Theilman re-raised the question of whether  term limits ought to be enforced for all nominees to town committees but the discussion did not result in any clear resolution of how the council will regard/enforce term limits moving forward.
• The council engaged in considerable discussion of Theiman’s nomination, eventually adopting a compromise of appointing her to a one-year term (instead of two) by a vote of 3-2. 

Appointments 

The committee discussed the town manager’s nominations to the Affordable Housing Trust Board of Directors (HTC) and to the Public Shade Tree Committee (PSTC). Councilor Ross commended the town manager for providing more biographical information about his nominees than he has done previously. Councilor Brewer noted that these memos were an improvement but in her opinion still did not provide enough information for OCA to make informed recommendations to the full council.

Councilor Cathy Schoen (District 1) requested time to comment on the housing trust nominations. A discussion ensued as to whether she should be allowed to comment before OCA on a specific issue outside of the public comment period scheduled for the end of the meeting. Councilors were not in agreement. Brewer noted that there is no set policy on this. Councilor Dumont noted that at-large Councilor and Finance Committee Chair Andy Steinberg had been given substantial time to address OCA the previous week. Swartz reminded the group that her policy (as chair) has been that members of the council could have time to speak before OCA if they made a request to her at least one week in advance and that Steinberg had made such a request.

Ross elected not to recognize Schoen and said that the committee should revisit its public comment policy in the weeks ahead. 

A motion to recommend to the full council the town manager’s nominations to the Affordable Housing Trust Board of Trustees passed 5-0 without further discussion or debate. 

Regarding the PSTC appointments, Dumont informed OCA that she has received a query from the commission’s chair about one possible appointee who doesn’t seem to have any experience relevant to the work of the commission. She noted that this was another instance of where it would help to know the size of the pool as well as the identities of individuals in the pool in order to have a better sense of why this person was selected rather than someone else. Dumont also wanted to know why the person without any apparent experience was given a three-year term.

Ross responded that these are questions that OCA can’t answer under the current system, and that this is why it would be worthwhile to have the town manager present for these discussions. He said that Town Manager Bockelman is amenable to being present to answer questions but was not able to attend today’s meeting. The appointments deadline was July 1, requiring both OCA and the council to act on the nominations on that very day.

Councilor Ryan asked for a pause in the meeting to see if the town manager could actually come to the meeting and join the discussion, and went off to find him. Bockelman indicated that he could join the meeting at 10:30 and the discussion of nominations was postponed until that time. 

Swartz pointed out that at the council meeting that evening, some people will be appointed to multiple commissions/committees, and asked that OCA get back to these candidates to confirm that they are willing and able to serve on multiple committees. She asked whether OCA has a formal process to confirm this? 

Finance Committee

OCA members resumed their discussion of the candidates for Finance Committee that they had begun at their previous meeting. Ross again raised his concern that one candidate—Mary Lou Theilman—had exceeded the recommended term limits of two terms or six years. 

Dumont, who was the appointing authority for the Finance Committee, asked to make a statement to OCA regarding its concerns and the criticism that had been voiced about the way she had fulfilled her duties as the OCA appointing designee. (Note: Dumont screened the candidates, conducted the interviews, and made the final recommendations) and in particular with the nomination of Theilman. (Dumont’s nomination memo can be found here). 

Her statement contained the following points. 

1. Regarding Theilman – there is no denying that she is extremely qualified with deep knowledge of municipal law, Dumont wrote. Dumont reviewed Theilman’s many qualifications including years of service on the Finance Committee and School Committee noting that she exemplifies the qualities that Dumont was instructed to look for.
2. The group that Dumont put forward was very balanced. 
3. It is unwise to be developing policy  ad hoc just because some committee members do not favor one of the appointees. OCA’s past policy and precedent have been flexible regarding term limits (see also the discussion from the last OCA meeting). Dumont contrasted the treatment of Mark Parent on ZBA vs. Greg Stutsman on the Planning Board. Stutsman was replaced because of term limits while Parent was deemed to be essential to providing necessary continuity and leadership to an inexperienced group and was given a one year appointment). (Note: OCA appears to be divided on whether there ought to be a term limits policy with some members advocating for taking this on a case by case basis.) 
4. None of the candidates were made aware that term limits would be an issue in the selection process.
5. The Finance Committee specifically asked for someone with expertise in municipal law. 
6. OCA is attempting to impose a criterion after the fact, which is not good practice.
7. OCA has spent a lot of time in the last couple of meetings trying to derail this group of candidates through procedural issues (term limits, an applicant who was not offered an interview, the withdrawal of some candidates because they could not meet at the Finance Committee’s scheduled time), leading some to suggest the process was flawed and that it might have to be done again. Dumont suggested that this attack on the process seems to be targeted toward eliminating one candidate (Theilman). She warned that if the council is worried about people being discouraged about applying, that this is the kind of thing that will chill the enthusiasm of applicants. And in the end the Finance Committee was clear that they would not change their meeting time to accommodate applicants who could not meet at the specified time, rendering that objection moot. 
8. Ross, as chair, went to the Finance Committee (along with Brewer and Ryan) 

to speak about these appointments without taking it up with OCA first or without posting a public notice of their appearance. 

Following Dumont’s statement each of the other members of OCA responded in turn, sometimes angrily, with each complaining of being personally insulted and chastising Dumont for mischaracterizing their motivations as political or as directed toward keeping Theilman off the committee. All emphasized that they were concerned with the integrity of the appointment process and their concerns that it had been violated in multiple ways. 

Brewer argued that OCA was not attempting to keep Theilman off of the Finance committee and that it was not about Theilman per se. She acknowledged that Steinberg did appear before OCA and did possibly derail the process but that was not the fault of OCA. She asserted that council has a term limit policy in place and that OCA must abide by it. Old policies are in place until the council replaces them, though she acknowledged that OCA itself has not agreed on this. She noted that Mark Parent was offered a one year term with an explicit acknowledgment that this was outside of the bounds of specified term limits and that he was carried over because his experience was deemed essential.

Swartz, who wrote the memo for ZBA and Planning Board appointments noted that she was quite explicit about term limits, acknowledging that it might be necessary to carry someone over in spite of term limits because of the need for balance, experience, and expertise on a committee.  She noted that she was insulted that Dumont would suggest that these machinations are political because she went to great lengths to make sure that the appointment process was not. (Note: and yet Swartz had to contend with considerable pushback from her colleagues  in an organized effort to keep Janet McGowan off of the Planning Board (see link).

Ross took offense “at everything Darcy said.” He noted that he had every right to speak at the Finance Committee on behalf of OCA as its chair and he objected to her charges of political motivation on the part of the committee. He, like the previous two speakers, said that raising concerns about a missing application and asking for a commitment to a specific meeting time, and suggesting that this was an effort to derail the process and serve as a basis to rationalize removal of Theilman was insulting. He then added that he does have serious concerns about Theilman’s appointment and questioned whether it is justifiable to appoint her. His concern is that Theilman has already served on Finance Committee for a long time and we need to bring in new people. He also objected to the suggestion that there are people who simply do not want Theilman on the committee and called such accusations insulting and unjustifiable. 

 
Ryan said that it is difficult to be an active participant and recorder. Nonetheless, he agreed with all of the previous speakers in strong objection to Dumont’s statement. He said that no one objects to Theilman and that the objections raised offer no judgement of her – that OCA simply has an obligation to be consistent in their application of term limits. He asked that Dumont refrain from characterizing the motives of members of the committee in the future and suggested that the committee needs to go back and find someone else in place of Theilman.

Ross said that he is not rigidly attached to term limits and length of service should not be disqualifying but in this case there are plenty of other qualified people who might be appointed in Theilman’s place.

This discussion was suspended at 10:30 when Bockelman arrived and the committee returned to the discussion of Public Shade Tree Commission Appointments.

Dumont asked if there were applicants other than those who were chosen. There were not and Bockelman noted that this is a committee that is always looking for members and generally anyone who wants to serve is able to find a position. Dumont noted that the charter requires relevant experience or expertise in the area of concern. Dumont asked how Clare Bertrand is qualified. Bockelman responded that two of the appointees had no experience with shade trees but have been involved in other town activities and bring a lot of energy to the work of the committee and that this, in his view, is sufficient to satisfy the requirements of the charter (see Section 3.3c of the Town Charter). Ross said that in his view experience doesn’t necessarily have to be about  “content” (or actual expertise in the area of concern) but could be social experience or organizing experience. Brewer noted that the “shall seek” in 3.3c becomes more of a mandate when the pool is larger. 

At this point OCA moved to accept the Town Manager’s nominations to the Public Shade Tree Commission and recommend them to the full town council. The motion passed 4-0-1 (Dumont abstaining).  Brewer asked Dumont to clarify the reasons for her abstention so that they could be included in the memo and noting that there would be no time to produce a minority report. Dumont noted that she was uncomfortable with the rationale for offering a three-year appointment to someone with no apparent relevant experience. 

Ross then asked for clarification on one item in the housing trust nominations. He noted that one nominee (Lewis) is spouse of a town councilor and thought that in the service of transparency, this should have been mentioned. Bockelman responded that he did not mention this because it did not come up in the interview or the deliberations. Bockelman said he does not know how folks are connected personally so he doesn’t consider that in his deliberations and that it’s really up to candidates to inform about potential conflicts of interest. 

Ross then opened the floor for public comments – noting that while this is usually reserved for the end of the meeting, he wanted to accommodate the people who had been waiting patiently. He cautioned however that there would be no additional opportunity for public comment at the end of the meeting.

Public Comment

Janet McGowan (District 5) spoke first.

First she asked OCA to take public comment before voting so that public views will be considered and so they can have a potential impact on the vote.

(Note: public comment at OCA is typically taken only at the end of the meeting).

She then offered comments in support of Mary Lou Theilman noting her considerable experience in town government and town finance and of her ability to communicate technical information in accessible ways to broad publics. She pointed to Theilman’s non-partisan approach to town government and her ability to work across differences and her tendency to seek the best arguments and solutions regardless of where they come from. She suggested that the Finance Committee appointments under consideration should not be subject to term limits because resident non-voting member is a new status – “a creature of our new charter” and hence these are actually first term appointments.  McGowan pointed to the problem of making arguments of convenience and noted that the council has been inclined to do this. Sometimes the council argues for the essential need for experience. Some time for limits. She suggested they need to be more aware of how these arguments are inconsistently and differentially applied. McGowan charged that Theilman’s nomination poses a challenge to Finance Committee chair (Steinberg) who has explicitly opposed her nomination. McGowan noted that Theilman would be the only person on the Finance committee who has more experience than Steinberg. 

Council member Cathy Schoen, saying she was speaking as a member of the public and as vice chair of the Finance Committee, advised OCA that there is a brief mention in the charge for the Affordable Housing Trust Board of Trustees that the Town Manager will be made a trustee.  The question was raised in the drafting of the charge about the advisability of one person being the appointing authority AND being a trustee. Schoen said this is not advisable. These roles were not combined under old form of government. (Note: Under the current (un-amended) bylaw, the Select Board had a seat, made appointments, and could remove members. Under the new bylaw proposed by the prior Bylaw Review Committee, the Town Manager has a seat, makes appointments, and can remove members.)  Schoen advised that she would raise the issue at council that evening and noted that this needs to be resolved when the new charge is written.

Schoen also commented on resident non-voting members of the Finance Committee.  She observed that several candidates had past experience on the Finance Committee while others brought other kinds of experience.  Her recommendation would have been to appoint one with previous Finance Committee experience (instead of the two nominated) and bring in two with outside perspectives. She nonetheless recommended approving the three nominees, appointing two to two-year terms and one to a one-year term.

More on Finance Committee Nominations

OCA then returned to their deliberations on Finance Committee nominations

Ross raised the question of whether non-voting members are needed/desired on the Finance Committee. Schoen said she thinks they should be, noting that  “we may not always have councilors with strong finance backgrounds and councilors are only appointed to the Finance Committee for one year.”. Resident non-voting members could bring continuity and expand expertise so she recommends continuing with the resident non-voting members..

Dumont said that she wished to soften her opening statement. She acknowledged that there are people on the committee who feel strongly about term limits and that they have been clear on that.  She asked if OCA would adopt Schoen’s suggestion and “deal with what is in front of us” with staggered terms – similar to what OCA did with Mark Parent and the ZBA She suggested that this won’t look like we are retroactively applying a standard that we didn’t make clear within the process and we would get Theilman’s expertise in municipal law for one year. 

Swartz said that the council needs to make clear, in writing, what it means by the terms “term limits,” “expertise,” “experience,” and “the entire pool.”  She said she is frustrated with people in the community, and on the council, suggesting that OCA acts in a partisan way. She asserted that “we should never bend rules to fit a partisan political agenda” and wants term limits to be discussed and expressed consistently and outside the bounds of political considerations. She lamented that people keep suggesting that folks are “packing” the committees and acting with political motivations and “that should make us all uncomfortable.”

Brewer moved that Theilman be appointed to a one-year term and Sharon Povinelli and Robert Hegner to two-year terms.  Her rationale referred back to discussion at the previous meeting of OCA about need for staggered terms. Using the precedent of the ZBA, Brewer suggested that Theilman be given the one-year term because of the expertise that she can bring in the transition. Brewer noted that this does not prevent her re-appointment at the end of her term but also shows awareness of the importance of term limits and bringing in new people. 

Ross noted that OCA has not resolved how to deal with the situation of OCA members seeing people in the applicant pool who they would prefer to have been brought forward but who were not. There is currently nothing established in the process to permit this.  The only option available to OCA members is to vote against the nomination motion. Ross noted that he saw several people in the pool whom he found to be preferable to Theilman if only because of her decade of service on the committee. He can’t move to bring those into consideration so he will vote against the motion.

The motion to appoint Theilman to a one-year term and Povinelli and Hegner to two year terms  passed 3-2 (Ross and Swartz dissenting).

Brewer asked for comment from the minority to be entered into the record since there will be no time to write them into the memo.

Ross repeated his objections noted above. He also noted that he and Swartz are seeking uniform application of term limits to the planning board. 

A vote on these nominations will be taken by the full council at their meeting of July 22.  OCA will submit Dumont’s original nominating report plus a cover memo that will include a minority report. 

Future Meetings

Ross proposed that the committee begin to meet twice monthly instead of weekly. Currently no other committee of the council meets weekly. He set the next meeting for July 22^nd. Brewer pointed out that OCA has a substantial workload ahead including discussion and revision of the appointment process but that this is not optimally taken up over summer.  She suggested that members of the committee give this a lot of thought and that the committee resume its consideration of these matters in September.