Does Gloucester's Government Really Represent Its Constituents

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Our country is a republic and in a republic, we vote for representatives that should stand for and fight for the wishes of their constituents.  Anything less would mean a representative failed to meet the legal and moral obligation of their office. 

After attending the last two Gloucester Public Hearings concerning the 3A Mandate, I had that uneasy feeling that some councilors were going to ignore their legal and moral obligations to their constituents and vote for the 3A Mandate without an adequate review of all the facts and sentiments presented during these hearings.   

It was obvious that the majority of the residents at the hearings were against the 3A Mandate and they more than adequately provided solid and well researched arguments supporting their position.   With all the valuable input from their constituents, I would expect that the councilors would thoroughly do their due diligence evaluating this input before voting on the 3A Mandate.   I would assume that process would take 2 to 4 weeks of careful review and debate between themselves to come up with the best decision.  However, I heard a rumor that the councilors plan to vote on it this October 1st.   If this is true, it sounds like the councilors have already made up their minds without taking into account their constituents required input.   Furthermore, it was stated that two of the councilors had some conflict of interest and excused themselves from the voting process.   

I believe these two either received inaccurate information or wanted to be excused from making a possibly controversial vote.  I could be wrong but if this is true, they may have wanted to avoid the wrath of upsetting the majority of their constituents.  Weren’t these two voted into office to represent their constituents in all matters despite misinformation or external pressures?  Since the councilors were being excused for no apparent legal reason, I decided to dig into this to try to find out why.  It was also rumored that since these two represented wards that would be more greatly affected by the 3A Mandate, this fact itself created the conflict of interest.  However, the 3A Mandate would, in all likelihood, affect over 10% of the people in those wards and this fact should eliminate any concerns about a conflict of interest based on the existing law (a note on this law from Attorney Michael Walsh is included below). 

Based on the above, I would expect the right thing to do is that all the councilors, including the currently abstaining ones, thoroughly take their time and carefully and prudently review the valuable input provided by Gloucester’s residents before making their decision.   I believe if they live up to their oath of office, they will vote against the 3A Mandate.  I pray they make the right decision but the decision is currently their’s.  

Thank you.

John T. Kolackovsky
Rockport

Attorney Walsh’s Note
It is not a violation of the conflict of interest law, G. L. c. 268A, for an elected official with policy making role to make policy simply because he/she may be effected.  This exemption, for general policy, is rooted in the fact that the conflict requires participation in "a particular matter." 

The General Laws specifically codify this exemption:
" b) It shall not be a violation of this section:...(3) if the particular matter involves a determination of general policy and the interest of the municipal employee or members of his immediate family is shared with a substantial segment of the population of the municipality."G.L.c. 268A s. 19(b)(3).  Thus, a city councilor can vote for or against a tax raise across the whole city, even though it affects him, because it is a general policy matter.  In interpreting the state level version of this exemption for general policy, the ethics commission has defined a substantial portion of the population as roughly 10% or more.  930 CMR 6.25(3)(a) (" An elected state official does not violate M.G.L. c. 268A, § 6 by participating in a particular matter in which the official, or the official's immediate family member, has a financial interest, if the particular matter involves a determination of general policy, and the financial interest of the elected official or immediate family member is shared with at least 10% of the population of the entire geographic area represented by the official and is the same in nature as the constituents' financial interests  ").

The current guidelines, as applied to Gloucester, requires an increase from the existing housing stock by 15%.  This should inherently affect at least that much of the population.  Moreover the ethics law is not designed to shut elelcted policy makers out from representing their constituents.

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Attorney Michael C. Walsh
PO Box 9
Lynnfield, MA 01940