Opinion: Why Can’t Amherst Have What Littleton, Massachusetts Has?

When you live in a town like Amherst, there are bound to be situations where a reasonable person might have the impression that a public servant might be significantly influenced by outside interests, even though there may be no actual conflict of interest (paraphrased from lawinsider.com). One may claim impartiality, and refuse to either abstain from voting or recuse themselves (from deliberations as well as voting) on issues that may help a friend’s business, and the only recourse for the community is to file a complaint with the State Ethics Commission, which kicks off a full investigation. This may seem too aggressive to someone trying to stay neighborly.

I think it would help if Amherst does what Littleton, Massachusetts did — create a code of conduct and ethics that just shines the light a little brighter and longer on a situation where a closer look is called for.

Littleton is hardly the only town to have established a code of ethics. A google search for “towns with ethics committees” turned up 17 pages of links (see note from Kitty Axelson-Berry at the end of this article).

Here is that Code of Conduct and Ethics — enjoy!!

CODE OF CONDUCT AND ETHICS TOWN OF LITTLETON, MA

Unanimously adopted by the Board of Selectmen, November 17, 2008

1. ENABLING AUTHORITY – MGL Chapter 268A, Section 23 (e)

A municipality may have a Code of Conduct, provided it is consistent with State law and that the Board of Selectmen, as the chief appointing officials for the Town, vote to adopt such policy.

MGL Chapter 268A, §23 (e): Nothing in this section shall preclude any … head of such agency from establishing and enforcing additional standards of conduct.

2. PURPOSE STATEMENT

The intent of this policy is to establish a clear statement and guidelines to serve as the standard for achieving and maintaining a high level of public confidence, trust and professional respect with regard to how the Town and its officials conduct business. This policy will define and create a centralized policy with regard to conduct and ethical standards.

The Board of Selectmen recognizes the importance of professional standards at all levels of the government including those who volunteer their time and services on behalf of the Town. The Board encourages other boards and committees of the Town who are not appointed by the Selectmen to adopt this standard by reference thereby creating a Unified Code of Conduct and Ethics for Town Officials as a standard for expectations of public officials.

3. APPLICABILITY

This policy in all its sections shall apply to the boards, presiding officers, public officials, commissions and committees and other representatives appointed by the Board of Selectmen and those representatives appointed by the Town Administrator, more particularly defined below:

The term “the Board” and “the Selectmen” shall apply to the Board of Selectmen
The term “member” shall apply to those appointed by the Board of Selectmen or the

Town Administrator

The term “official” shall apply to a Board of Selectman member or a member appointed

by the Board of Selectmen or Town Administrator

The term “chair or presiding officer” shall apply to the chairperson of a

committee/board/commission or the officer serving in the absence of the chair

The term “appointing authority” shall apply to the Board of Selectmen or the Town

Administrator
• All of the terms used herein including commission members, committee members, board members, representatives appointed by the Board or Town Administrator and other officials mentioned in this guideline are subject to this policy

4. CODE OF CONDUCT
These obligations and commitments shall be assumed by all members of the Board and other officials defined in the Applicability section:

Be well informed concerning the local and state duties of a board/committee member whenever applicable
Remember that he/she represents the Town of Littleton at all times
Accept their position as a means of unselfish public service, not to benefit personally,

professionally or financially from his/her board/committee position

Treat all members of the board/committee with respect despite differences of opinion;

keeping in mind that professional respect does not preclude honest differences of opinion

but requires respect within those differences

Recognize that the chief function of local government at all times is to serve the best

interests of all of the people

Honor confidential information, seek no favor and believe that personal aggrandizement

or profit secured by holding these positions is dishonest

Conduct themselves so as to maintain public confidence in their local government and in

their performance of the public trust

Conduct official business in such a manner as to give the clear impression that they

cannot be improperly influenced in the performance of their official duties

Unless specifically exempted (e.g. Executive Session), conduct the business of the public

in a manner that promotes open and transparent government and maintain full compliance with the Open Meeting Law (MGL Chapter 39, Section 23B)

5. CODE OF ETHICS

5.1 Purpose

This policy is issued for the purpose of ensuring that the Board and all other officials defined in the Applicability section comply with the provisions of MGL Chapter 268A, the Conflict of Interest Law, including disclosures made under Sections 19 and 23 and more stringent policies adopted by the Board herein.

5.2 Actual Conflict of Interest (MGL Chapter 268A)

The Board and all other officials defined in the Applicability section must understand that there may be times when actions they take could be inconsistent with Conflict of Interest laws of the Commonwealth. There may also be times when an appearance of conflict exists.

5.3 Procedure

The official in question shall not participate in his/her official capacity in matters in which such participation is prohibited by the Conflict of Interest Law and the official in question shall disclose in writing the conflict of interest to their appointing authority and this disclosure shall be recorded into the minutes of the meeting
The member shall leave the room for the duration of the discussion unless advised otherwise by Town Counsel or the State Ethics Commission
When a conflict or appearance of conflict exists, the chair or presiding officer shall state the reason (s) for the conflict of potential conflict and will ensure that the member does not participate in the matter as a point of order
The chair or presiding officer of the meeting shall ensure that the reasons for the conflict are clearly stated (as stated by the member in person) and this shall be recorded into the minutes of the meeting and made available for public view; if the member chooses to recuse himself from the meeting and is not present to state the reasons for recusal, then the presiding officer shall verbally enter the member’s statement which will be recorded into the minutes
The member shall re-enter the room only after the discussion has concluded and the chair or presiding officer of the meeting will state, upon re-entering the meeting by the member in question, that member has re-entered the meeting.
This shall be repeated each time the subject in question is discussed at subsequent meetings
All officials defined in the Applicability section should seek and adhere to advice from the Ethics Commission, their appointing authority and Town Counsel if necessary (Note: the State Ethics Commission offers free advice via phone or in writing)

5.4 Appearance of Conflict of Interest (MGL Chapter 268A, Section 23)

The Conflict of Interest Law provides that public officials and employees must avoid conduct that creates a reasonable impression that any official can improperly influence or unduly enjoy their official favor or that they are likely to act (or fail to act) because of kinship, rank, position or undue influence by any party or person.

MGL Chapter 268A, Section 23 allows public officials to act on certain matters, even if it creates the appearance of a conflict, if they openly admit all of the facts surrounding the appearance of bias prior to any official action.

MGL Chapter 268A, Section 23(b)(3):

(b) No current officer or employee of a state, county or municipal agency shall knowingly, or with reason to know:

(3) act in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.

Under MGL Chapter 268A, Section 1 (definitions), an official may be classified as a “Special Municipal Employee” when such status is authorized by the Board of Selectmen. Such a status provides greater latitude for officials serving in multiple roles. However the Board’s designation of an employee as a Special Municipal Employee will not preclude the expectation that the official must and will avoid conduct which creates a reasonable impression that any official can improperly influence or unduly enjoy their official favor or that they are likely to act (or fail to act) because of financial interests, kinship, rank, position or undue influence by any party or person.

Irrespective of governing statute, the Board urges all members and officials to exercise due diligence with respect to preserving the public trust. At times, this may mean an official or member must not act or participate until the matter has been determined by Town Counsel, the State Ethics Commission or any other governing entity if applicable That determination will also be made in writing and be made available for public view.

5.5 Procedure

The member in question must fill out the appropriate disclosure form, available from the State Ethics Commission (www.mass.gov.ethics) or from the Town Clerk
This form must be submitted to the appointing authority for review
The member in question shall submit, in writing, all of the facts surrounding the potential

conflict to their appointing authority

The member in question shall not participate in the particular matter until and unless the

approving authority has granted written permission specific to the disclosure and has filed

a copy of such written permission with the Town Clerk

The reason for the existence of the potential conflict, the granted permission and the

compliance of these guidelines shall be stated by the member before participation and

shall be verbally disclosed at the meeting and recorded into the minutes of the meeting

This shall be repeated each time the subject in question is discussed in subsequent

meetings

It is the responsibility of the chair or presiding officer to oversee the procedure after

initiation by the member in question; the chair or presiding officer shall also be
responsible for ensuring that these disclosures are entered into the minutes and are appropriately filed with the Town Clerk for public view
• The Town Clerk shall maintain a separate file of disclosure statements which shall be kept available for public view

6. DISTRIBUTION AND EDUCATION

The Town Clerk shall provide a copy of this policy to all members as defined in the Applicability section upon its issuance and upon the subsequent appointment of re- appointment of any member
The Town Clerk shall also maintain and distribute educational materials from the State Ethics Commission to members
The Town Clerk shall develop a schedule of training programs to educate the Board and members on the Conflict of Interest Law and this policy
The Town Clerk shall have each member sign a statement that they have read these policies and will comply with all requirements set forth in this policy; this form shall be available for public view

Ira Bryck has lived in Amherst since 1993, ran the Family Business Center for 25 years, hosted the “Western Mass. Business Show” on WHMP for seven years, now coaches business leaders, and is a big fan of Amherst’s downtown.

Note From Kitty Axelson-Berry

We were unable to find a Code of Ethics for officials in the town of Amherst’s charter, although on May 20, 2019 the town council passed a document called “Rules of Procedure, Rule 6, Code of Courtesy, Conduct, and Debate”, which concerns itself strictly with decorum (see below) until the very end, which states:

6.5. Conflict of Interest. All Councilors shall comply with MGL ethics and conflict of interest laws. Councilors shall conduct themselves in the spirit of openness and transparency.

Rules of Procedure (as adopted by the Amherst Town Council on May 20, 2019)

RULE 6. CODE OF COURTESY, CONDUCT, AND DEBATE

6.1 General Rules for Conduct During Council and Committee Meetings All meeting participants including Councilors, residents, and staff should confine their remarks to the substance of the issue at hand. Participants shall avoid discussing personalities and not impugn the motive, character, or integrity of any individual.

The Council supports the right of a resident to criticize its local government, but this should be done appropriately and responsibly, with civility and discretion. All participants shall address their remarks to the presiding officer and maintain a civil tone. These rules of conduct shall also apply to all written correspondence. Interactions shall be guided by the values statement adopted by the Council. Appendix A. During meetings: a. Discourse at Council meetings shall be marked by courtesy, openness, and respect, even in the face of disagreement. b. Discussion shall be centered on issues on the agenda and shall not use unbecoming or abusive language. c. Cell phones and other such devices shall be silenced during Council meetings. d. Councilors and members of the public shall not hold private conversations during Council meetings.

6.2 Public Courtesy and Decorum a. The Council welcomes the public to meetings and encourages public comments. b. Public comments shall focus on specific issues. c. Generally, the public shall not be allowed to participate in the deliberations of the Council. Exceptions to this rule shall be at the discretion of the presiding officer. d. Those present shall not engage in audible demonstrations of approval or disapproval. e. Those present shall not conduct themselves in manner that disturbs or impedes the orderly procedure of the meeting. If such conduct occurs, the presiding officer may call a recess or adjourn the meeting. f. Any member of the public may make an audio or video recording of an open session of a public meeting. A member of the public who wishes to record a meeting must first notify the presiding officer and must comply with reasonable requirements regarding audio or video equipment established by the presiding officer so as not to interfere with the meeting. The presiding officer is required to inform other attendees of any such recording at the beginning of the meeting. If someone arrives after the meeting has begun and wishes to record a meeting, that person should attempt to notify the presiding officer prior to beginning recording, ideally in a manner that does not significantly disrupt the meeting in progress (such as passing a note to the Clerk). The presiding officer should endeavor to acknowledge such attempts at notification and announce the fact of any recording to those in attendance. MGL Ch. 30A Sec. 20(f).

6.3 Councilors’ Conduct and Debate Decorum Councilors shall conduct themselves in orderly manner to assure that the business of the Town is attended to as expeditiously as the deliberative process allows. a. Councilors shall address requests to speak through the presiding officer and shall not speak until recognized. b. When 2 or more Councilors request to be recognized at once, the presiding officer shall designate the order of speaking. c. No Councilor shall speak more than once until all other Councilors desiring to do so have spoken. d. Councilors shall not interrupt a colleague except to raise a point of order, to express a point of personal privilege, or to doubt the presence of a quorum. e. Councilors may speak upon a matter for no more than 3 minutes at a time, except when introducing or presenting a measure. A Councilor may yield all or part of this time to another Councilor. f. Discussion shall be limited to the topic before the Council. Extraneous issues shall have no place in the debate. g. In discussions, Councilors shall stay focused on the issue at hand until a decision has been made or the discussion has been postponed to a later time. h. No person other than a Councilor or the person having the floor shall engage another Councilor or person in debate or discussion without permission of the presiding officer. The presiding officer may allow 2 Councilors to debate and may limit the time of the debate. i. Councilors shall confine their remarks in debate to the pending question. j. Any Councilor who knows in advance of a meeting that they wish to obtain certain data or have a question answered, or wishes specific figures or expenditures, or the like, should, insofar as possible, inform the President and Town Manager in writing to facilitate the opportunity to have the answer available at such meeting. k. The presiding officer, and Councilors shall address each other by first names.

6.4. Preservation of Order, Right to Speak, and Vote The President or presiding officer shall preserve decorum and order, may speak to points of order in preference to other Councilors, and decide all questions of order. Charter Sec. 2.2(b). The President may speak in favor of, or in opposition to, any motion and may participate and vote under the same rules as applied to other Councilors. Charter Sec. 2.2(b).

6.5. Conflict of Interest All Councilors shall comply with MGL ethics and conflict of interest laws. Councilors shall conduct themselves in the spirit of openness and transparency.

We also found that the town has consulted with KP Law, the town’s legal firm, in the past regarding at least one question about potential conflict of interest:

A Google search for “towns with ethics committees” turned up 17 pages of links. Other links, some of them overlapping, were found searching for towns with ethics commissions, ethics boards, codes of conduct, codes of ethics. Below are the first two or three pages of “towns with ethics committees” as well as some organizations involved in helping towns decipher what might be considered to be ethical or to constitute a conflict of interest or, importantly, the appearance of a conflict of interest, which is said to undermine public trust in government and individuals.

Organizations:

Law Insider

National Law Review

Vermont League of Cities

MSRC. MRSC is a non-profit that helps municipalities in the state of Washington.

Ethics Commissions in Connecticut, a research report

A Few Of The Many Towns With Ethics Committees:
South Windsor Connecticut