The Select Board [members] in Plymouth are not legal experts and should consult one when an important legal issue comes before them. Town counsel would be an appropriate mentor regarding the propriety of designating the town moderator as a “Special Employee” permitted to represent clients before the Town. The reason? Because the point of it is whether or not a conflict of interest is likely. That’s why such a rule exists. It’s to exempt those public officials whose actions are unlikely to present a conflict of interest. In Triffletti’s case, a conflict is most certainly unlikely. Here’s why:
A conflict of interest, under Massachusetts law, is primarily based upon the prospect of benefitting personally, financially, from one’s involvement in the public activity, at the expense of the municipality and its constituents. The analysis that must be weighed is the extent to which one’s allegiance to the public could be compromised by permitting the individual’s private action before a town body.
Of all town officials, town moderator is the least prone to such conflict with the town. Why? Because his is the only position in town government that is required to be impartial! It’s in his title. He is “town moderator.” Not “town partisan advocate.” Every other official is entitled to promote his personal opinion on a town matter. The Select Board and Planning Board members actually run on their personal political platforms. The boards they appoint are, in turn, vetted for people who are inclined to share their political viewpoints. Even the town manager is selected by the Select Board based upon his or her political perspective as much as for their experience or competence. It’s not a secret.
Are there people in appointed and elected positions who might gain personally and financially from their public decisions? Absolutely. It happens all the time and it is always an issue that must be examined by town officials in order to preserve the public trust. Developers, realtors, building owners, businessmen, nuclear employees, and their employees and families, have often occupied a public position in town where their public decisions impacted their personal assets, businesses, or finances in some way. I won’t list them so as not to single anyone out, but everybody in town knows who they are. I don’t mean to minimize the issue. It is always important, and they should be called out when there is some question as to their motives. But it is impossible to purge town government of every potential conflict. You won’t have a volunteer town government if you try.
While I was a Plymouth resident for 40 years, I practiced law. I also served as a Town Meeting member, on the Open Space Committee, the Conservation Commission, the Nuclear Matters Committee, the Town Manager Selection Committee, two village steering committees, and others I don’t even remember anymore. I did not receive a stipend for any of those, but I represented clients before several. Politically active as I was, I often campaigned for candidates who I later sought rulings from in their public capacities. That happens all the time, especially in the legal community. Should the town start eliminating attorneys from public service? How about realtors? Developers? Restaurateurs? Businessmen? Large landlords? Employees of large corporations with a vested interest? Of course, that would be self-destructive in a community that depends on wide participation in its government, as does Plymouth.
Of all those occupations, it is attorneys who are the most professionally regulated. They can be sanctioned or disbarred for unethical conduct – even its mere appearance! All of us have faced challenges from the Board of Bar Overseers at one time or another and we are twice careful because of it. The prospect that a town moderator, whose public job is completely ministerial, especially one with the demonstrated integrity of Steven Triffletti, would stand conflicted by personal financial interest while performing his public duties is not only unlikely, it is nearly impossible.
The board’s action in prohibiting him from further representation of private clients before town boards is not in response to any financial conflict of interest related to the matter in which he recently appeared, but entirely a result of the Select Board members failure to educate themselves on what the rule of designating “special employees” is really all about. It’s surprising that, with all the resources at their fingertips to get informed about the concept, they choose to just wing it. Not a good look.
Theodore Bosen