There’s already been a lot of discussion about Monday’s vote here, but here is the TAB’s Andy Levin’s article about the City Council’s rejection of six appointments to the Zoning Board.
Newton City Council rejects Setti Warren’s ZBA appointments
by Greg Reibman | Jul 12, 2016 | Newton | 40 comments
Interesting comments from Ted. Barbara Huggins sought advice from the City’s Law Department and the State Ethics Commission – both opined no conflict of interest or appearance of bias. Also Andy, if the ZBA decided to vote to remove a member, they would not only need consent of the Mayor but would also have to show cause for removal and the member has the right to a hearing. The mayor needs to apply the same standards equally to all members – both male and female and really should actually reach out to the community if he truly wants a more inclusive and diverse membership – diverse ethnically, by gender and by thought. That would be truly representative of the community.
Ted says:
“Being appointed is a privilege, it’s not a right. The mayor does not have to explain why he does or does not appoint somebody. It’s his prerogative.”
Um, no. He’s a mayor, not king. If he wants approval from the City Council, explaining his rationale for these appointments is exactly the right thing to do. Ted seems to think that it’s OK for appointments to be based on politics rather than solely on the merits, just because that’s the way it’s sometimes been in the past. Just because he can point to other examples where politics trumped merit, doesn’t make it right.
You want the best candidates? Then reject politics being interjected by either side. Only throwing a temper tantrum when the rejected candidates are aligned with your views makes you part of the problem.
Who had a temper tantrum?
Here is a memo written by the Newton Law Department refuting a conflict of interest claim against Ms. Huggins by Cabot, Cabot & Forbes.
“Suggesting that a municipal employee violates the Conflict of Interest law because that employee publicly states that she will follow the legal advice of the City Solicitor on the question of the ZBA’s jurisdiction over real estate restrictions is simply absurd and warrants no response.”
Note Cabot, Cabot & Forbes had wanted to put a residential housing development in our existing office park at Wells Ave. The City Council voted overwhelmingly against lifting a deed restriction to allow the project to move forward.
As a member of the Housing Appeals Committee, which Ms. Huggins appears before on a regular basis, I feel I need to hold myself to a higher standard when it comes to even an appearance of bias. On the day that the HAC was hearing two Newton appeals on the 1.5% issue and a Stoneham appeal on the 1.5% issue–in which Ms. Huggins’ partner Jon Witten represented Stoneham–after consulting with my colleagues on the HAC, we all agreed it would be better for me not to participate in deliberations or decisions in any of these cases involving almost identical legal issues. I had no actual conflict in the Stoneham case, but no matter how I voted, either developers or municipalities might view my participation as tainting the decision in the Stoneham case. As it turns out, I had no communications regarding the issues in these cases with my colleagues on HAC and the committee denied both Newton’s and Stoneham’s appeals.
Would the Ethics Commission have found a conflict or appearance of bias if I had participated in the Stoneham decision? Probably not. But, as I said, I hold myself to an even higher standard because I do not want anyone to assail the objectivity of the HAC as an institution. Ms. Huggins and the other members of the ZBA can make their own decisions, but I recognize that it is very difficult to find anyone with the requisite knowledge and experience who does not have experience as a 40B lawyer or as a 40B developer. By design, the HAC has two members who come from municipalities–one city councilor and one town selectman. We always have to be mindful of what it is going on in our respective communities whenever we take up a decision to ensure that we avoid even the appearance of impropriety. Which is why I never advocate for or participate in discussions about any 40B in Newton which has applied for a comprehensive permit from the ZBA.
The overwhelming majority of HAC decisions are upheld by the trial and appellate courts. I feel that the reason for that is we are so careful to make sure they are thoughtful, deliberate decisions based on the law and facts of each case and not preconceived notions about preferred outcomes. I know all too well that many of the bloggers here feel the HAC is somehow biased, but most of our decisions are based on longstanding precedent, DHCD’s regulations, and the language of the statute itself. Which is, again, why HAC decisions are rarely overturned.
I am not going to tell Barbara or the Mayor or anyone else whether they or anyone else has a conflict of interest or an appearance of bias. But there have been many times I have had to bite my tongue when some of my colleagues weighed in as “citizens” on issues or special permits that were before the BOA/City Council, in which I would have kept my own counsel in order to avoid even the appearance of impropriety. That’s just how I roll.
We all have biases. But the appearance of bias is uniquely in the eye of the beholder. It is a member’s judgment, not a conflict of interest, that ought to be taken into consideration when deciding whether to vote on an issue or project before a public body. Just my $0.02.
This is a very good example of how, in many cases, this Mayor’s behavior/actions do not follow his words nor the facts. Thank you to the sixteen individuals on the City Council who are opening their eyes to this fact.
Actually, Paul, um, yes, it is the Mayor’s prerogative under the City Charter to make appointments–or not. The City Council’s role is to approve his appointments–or not. The Zoning and Planning Committee unanimously approved all but one of the appointees in committee, so the only explanation for not approving them is–politics. I continue to think that was unfair to them.
By contrast, a duly appointed member of the ZBA can only be removed for cause by a majority vote of the ZBA with the consent of the Mayor. And the member who is removed has a due process right to a hearing on removal.
I still don’t get why Councilors thought it was okay to involve people who had nothing to do with their issues in this vote. Who takes advantage of people offering to serve the city? Who does that? And who offers to volunteer on a board or commission when they know the Councilors could very well use him/her to serve their political agenda?
@Jane it appears you weren’t there that night. Speaker after speaker clarified that by taking this vote we would be MAINTAINING THE CURRENT MEMBERSHIP of the ZBA, and thereby expressing support for the current membership remaining the same.
Ted
You aren’t being honest, you’re changing your words.
You said the mayor doesn’t need to explain his rationale. Of course he can propose the appointments. But they need approval. Explaining your rationale is precisely what we should want the Mayor to do.
Ted, it seems to me that your statement “the only reason for not approving them is-politics.” is still your opinion even though it is stated as a fact.
You also seem to be ignoring Amy and Emily’s point in posting the memo – I assume because it doesn’t fit your position. Ms Huggins publicly stated that she “will follow the legal advice of the City Solicitor … ” this statement clearly shows she did not vote by her own “political opinion” and as such does not appear biased. Of course the appearance of bias would actually indicate that her opinions and political bias are those of the clients her firm represents. CC&F knew this fact but tried to use it to vacate the ZBA’s decision on lifting the deed restriction. They were clearly biased. (As a departure, this type of thing is just one of the reasons, I would have liked to see a different developer as a member of the working group for the N2 Corridor.)
As you stated in your previous comment with which I agree, boards and committees draw value from members with excellent knowledge of the area of law required to make decisions – on both sides of the issues. It contributes value in applying the checks and balances that make decisions that plug more loopholes and hold up under legal scrutiny.
For example the 40B case you brought up, the mayor’s, along with legal council, assertion that the city has met its land area quota in the SHI to not be required to accept 40B proposals was defeated in court twice. While I would like for Newton to be more in control of zoning changes than 40B allows, we clearly have not met the legal requirements.
Jane, it seems to me that the mayor involved the people and the council voted afterward. Also I hope the answer to your last question is everyone so that they are aware they could be used either by the Mayor or City Councilors or even residents. Good to know what you are in for so you can try to protect yourself and your committee from it.
What Emily said.
Marti-I can’t figure out what this means.
Jane, did I misunderstand what you meant when using people who were involved? I assumed you meant the new appointments to the ZBA made by the mayor that were not approved by the city council.
The rest is an answer to the last question in the same comment. I hope everyone who “volunteers … ” is aware that they could be used. You asked who volunteers knowing they could be used.
Jane, what Emily is not telling you is that two vacancies will not be filled.
Paul, perhaps you do not understand. Not reappointing is not the same as removing. Removal can only be done for cause. Not reappointing requires no cause (or explanation) whatsoever. Your term expires and as soon as someone else is appointed to fill your seat, you’re done.
Marti, my colleagues were crystal. This is politics. But even if it is only my opinion, I was taught by a very good writer not to always say “I think” or “I believe” something–just go ahead and say it without clearing your throat first. That is how I write (or try to).
Ted
Perhaps you don’t understand what you’re quoted in saying to the Tab. YOU said that the Mayor doesn’t need to explain who he does and doesn’t appoint. That quote wasn’t limited to not reappointing. You said the Mayor doesn’t need to explain why he chose his selected nominees.
Maybe choose your words more carefully next time if you’re now going to walk back your comments by continuing to shift the story.
Paul, I give up. You are either being obtuse or argumentative, and I choose not to engage either type of person. Or as my grandmother always said: “Never wrestle with a pig. You end up covered in mud, and the pig? Well, the pig just loves it.”
The Mayor does not need to explain his appointments or non-appointments. Only a removal from office of someone prior to the end of their term requires cause and a hearing. The City Council has to opportunity to interview the appointees and review their resumes prior to approinting them, but I do not ever remember the Mayor being asked to explain why he appointed anyone. Clear?
Boy, is my smellcheck not working.
*the* oppotunity to interview the appointees before *approving” them
@Ted, Well I appreciate your perseverance in getting your point across. For what its worth, all your statements seem to be consistent in my reading on this topic.
Thanks, Groot. Diogenes has been rewarded.
Ted
My point is that as long as the City Council is the approval body, the Mayor would be wise to share his/her thinking. I did not know that isn’t commonplace, irrespective, the lack of communication in a case that is known to be controversial is not smart. Defending the lack of communication is not smart either.
Is the Mayor required to do so? Technically no. Should the Mayor? Probably so, particularly in a controversial situation. Perhaps it’s the difference between being technically correct and looking to get stuff done.
@Councilor Albright – You said “Albright said she was “oddly dismayed” at the mayor’s decision, but was uncomfortable voting against the appointments.”
Would you please explain your vote?
Thank you in advance
Here’s a question for everyone:
Remember the time that, without explanation, the Mayor withdrew the ZBA appointment of a big firm lawyer with loads of 40B experience representing developers and 2/3 of the former aldermen got their bowels in such an uproar that they voted down the appointment of Barbara Huggins? No? Neither do I.
I was the only alderman at the time who noted, with great disappointment, the withdrawal of the appointment of this very highly qualified person on the same night that Zoning and Planning interviewed Barbara Huggins for her first ZBA appointment. It would have provided balance to Ms. Huggins’ appointment, since she almost always represents municipalities or neighbors opposing 40B projects.
At that same meeting, while we were interviewing Barbara, I noted that, although I did not always agree with her positions on 40B, I would vote for her anyway because of her qualifications. Because that’s the way I roll. I could have had a temper tantrum, demanded an explanation from the Mayor about the withdrawal of the other appointment, voted against her appointment, chartered her appointment on the floor of the board, or just had a plain old hissy fit about it. But I didn’t, because I thought that would not be doing my job and would not be fair to her (full disclosure, I like Barbara, chaired a zoning task force she was on, and respect her a great deal). Which is also why I don’t think 2/3 of my colleagues did their jobs the other night. We should have voted based on the qualifications of the appointees, not political gamesmanship.
@Ted said.
@Ted – Is it your point that Councilors should be a rubberstamp to the Mayor? If so, why have this drama – why not cut councilors out of appointments?
Paul – The mayor did share his reasoning. You may not have liked his reasons, but to say that he didn’t share them is not accurate.
Who’s to know what Susan Albright was thinking? Maybe she understands the difference between the significant issues the City Council should be focusing on and political gamesmanship. Good on her.
“I was the only alderman at the time who noted, with great disappointment, the withdrawal of the appointment of this very highly qualified person”
@Ted
How is this not a conflict-of-interest just like Huggins? If you think it is legitimate to not appoint people with conflicts-of-interest, why not both ways? You point out the Mayor’s consistency, but shouldn’t you be similarly consistent?
@Jane
Sort of true, sort of false. The Mayor provided a rationale– one contradicted by the City’s Law Dept and State Ethics board– both that have far more expertise in assessing conflict-of-interest than the Mayor himself. He should have explained to the Councilors why he felt both of those bodies were incorrect. Otherwise, it smells like something different.
You wanted HIS rationale. He gave it. You don’t like it. That’s different from not giving a rationale.
This is silly.
He shared part of his rationale. He clearly felt that the experts ethics bodies were wrong and didn’t explain why. A key missing piece.
16 Councilors agreed that the Mayor was making a poor decision…and were willing to state it publicly?
Sounds like a rare tangible check and balance. When was the last time this happened?
Charlie, It should have happened under David Cohen.
There are 2 developers sitting on the ZBA (one member, one associate member) so I’m not sure I understand Ted’s point. The developer perspective is well-represented.
“At that same meeting, while we were interviewing Barbara, I noted that, although I did not always agree with her positions on 40B, I would vote for her anyway because of her qualifications.” –
I’ve done a similar analysis with the two developer re-appointments in the past. Despite my not necessarily agreeing with their positions and the fact that they are employed in the development sector – including 40B developments, I based my decision – not on any “appearance of conflict or bias” but on their record of service.
Not this go round though. This time – for their re-appointments, I provided an email to the Committee (had to go to the Burr School lead in the water meeting) expressing my concern about the lack of re-appointment of a female candidate but unfortunately that wasn’t read until after the Committee had finished their voting on the candidates. In my email, I stated that I would not be able to support any of the re-appointments or appointments without a better understanding on why the lack of diversity in the candidate pool and the non -reappointment of one of the only two female candidates on the Board.
In my view, if the Mayor has a particular concern about “appearance of conflict or bias” than that standard should be equally applied to all candidates – not just the female one who happens not to travel in the pro-development camp. This is not the first time this concern about “conflict of interest” has come up with re-appointments to Boards and Commissions. I get that the Mayor wants to weed out folks for various reasons – but those reasons ought to be tangible and based on fact and record of conduct.
@Neil P – I don’t think that is what i said. I was not “oddly” disappointed. I said I was disappointed at the Mayor’s reason. I said this in the context that using bias against one appointment makes no sense in the context of other appointments. Some, including the newer ones clearly stated a preference to vote down 40B while others clearly feel the other way. I was referencing the lack of consistency on the Mayor’s part. I didn’t follow the others like a lemming however, because we vetted these appointments in ZAP and they all were qualified. Why would anyone want to go through this process and do the city’s work for no pay, given the outcome, i.e. well qualified appointees all turned down. I have had my disagreements with Mayoral appointments to other Commissions. I simply wouldn’t vote down perfectly good candidates because i disagree on other appointments that weren’t before me.
The City Council will have a $45 m project (Cabot School) on its agenda in the near future. Have the Councilors done their due diligence on this project at this point? When the City Council puts this much time and energy into appointments to boards an commissions when significant fiscal matters are at hand, I have serious concerns about the its ability to set priorities.
This summertime political foray is setting an overture for corner office occupancy. Should the smiling mayor relocate with Hillary, who might chase his followup support and endorsement? Certainly those that were on the prevailing side have not executive ambition, voting with their heart & minds for the betterment of the entire city. Those on the losing side brown-nosing for their selfish motive/ambition.
I’ll have what Harry’s smoking.
Just the other day, I was talking with a friend from West Roxbury who said he thought that politics in Newton was just too bland because everything is so cordial, genteel and low emotion. He even referenced things over here as “dull”. All I could say in response was “you just don’t know, you just don’t know”.
Former Alderman Mark White remembers a rejection of an appointment by Mayor Mann early in his first stint on the Board of Aldermen as an Alderman-at-Large from Ward 7.
(Because of a debilitiating genetic disease, Mark lives in the Hebrew Rehab Center in Boston. He would love to hear from any long time political junkies from Newton at 617-905-8480.)
@Brian. Thanks for the heads up on Mark. Will call.