Let's examine a few recent offerings.
Leahy: Letter says he can vote for city manager (3/18/14)
The article's author, Lyle Moran goes on to cite various parts of the Mass General Laws (M.G.L.), specifically M.G.L. 268A (Link).
Moran notes the referenced Sections: 19 - (Link), 23(b)2 and 23(b)(3) - (Link)
Moran then writes (emphasis mine):
On Monday, March 10, Leahy filed a disclosure under Section 23(b)(3) of the conflict law highlighting his ties to Ramirez and his belief he could be objective.
Such disclosures must be made prior to any official participation or action in a matter, though Leahy's was filed after he already submitted his list of the five candidates, including Ramirez , he wanted to secure interviews.
The law says no such thing. I can't find any discernible reference to a reporting time line. Did Moran just make that up? No. He Didn't. What he did do, likely, is rely solely on this 'advisory.' (Link) Which, apparently, provides a strict interpretation of the M.G.L.
###
Now, let's look at Chris Scott's effort on his blog (Link).
In Scott's electronic handiwork, he answers his own question, but then draws an ill informed conclusion.
Scott cites a portion of the State Ethics page: Appearance of Conflict (Link).
Section 23(b)(3) prohibits a public employee from acting 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 the public employee's favor in the performance of his or her official duties, or that he or she 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 or her 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.
Section 23(b)(3) has often been described as the section that covers "appearances" of conflicts of interest. The statute as it currently reads, however, does not use the term "appearance." It is worth emphasizing that § 23(b)(3) prohibits acting "in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude" that the official might be unduly influenced or unduly favor any party or person.
Scott then writes:
It’s difficult to comprehend how a Leahy vote for Ramirez would be in keeping with the spirit, or intent, of the conflict law.Hey, Lowell Sun! Did you intentionally not notice this part?
if no appointing authority exists, discloses in a manner which is public in nature,Just in case, this is "difficult to comprehend," the Ethics page gives us this:
Example: A reasonable person could conclude that a board of health member might favor or disfavor his cousin's application. Although the cousin is not a member of his immediate family under §19, the family link would implicate § 23(b)(3). To dispel such a reasonable conclusion, the board of health member should make a written disclosure to his appointing authority, describing the relevant facts of the family relationship and the official action, prior to his acting as a board member. If the board member were popularly elected, she must make a disclosure that is "public in nature." The Commission has advised that elected municipal officials should make such disclosures in writing and file them as public records with their municipal clerk. In some circumstances, it may also be prudent to reiterate the disclosure as part of the meeting minutes.
How's this for "public in nature?"
(bold mine)
Ramirez dialing in on Lowell CM job?
The Sun (2/23/14)
Now all signs point strongly to a Ramirez candidacy. Need proof? He's called several city councilors, including brother-in-law John Leahy and Bill Martin, Rita Mercier and William Samaras. It's a safe bet to say he wasn't calling about the Olympics.
A couple of other councilors have also talked up Ramirez as an antidote to the candidacy of state Rep. Kevin Murphy.
Ramirez did not return a message left on his cellphone.
Leahy said Ramirez reached out to him to find out what he thought about his brother-in-law applying for the city manager's job.
"If it is an opportunity you want to go for, you should go for it," Leahy said he told Ramirez .
Leahy said he expects Ramirez will apply. On Friday morning, Leahy said he reached out to the Ethics Commission to seek an opinion on whether he could participate in the process if Ramirez does apply.
It appears Leahy will be able to participate. The state's conflict-of-interest law restricts municipal employees from participating in matters in which immediate family members have a financial interest. Immediate family members are defined as "the employee and his spouse, and their parents, children, brothers and sisters."
Ramirez is married to Leahy's sister.
At the least, Leahy may have to disclose in writing his ties to Ramirez . Leahy said there will be no favoritism if he participates.
Some highlights, for review:
- On 3/18, Moran writes, "Such disclosures must be made prior to any official participation or action in a matter." Yet, on 2/23, The Column wrote, " Leahy may have to disclose in writing his ties to Ramirez ."
The Column is more correct, based on the M.G.L. the Blog of Record has cited. Ironically, enough, The Column, on 2/23, actually fulfilled Leahy's reporting 'requirement.' Which, if you have forgotten, is codified to be "public in nature."
- The Ethics page distinguishes a 'popularly elected' from other types of government officials. It is because - "no appointing authority exists."
- Because Leahy has disclosed his relation to Ramirez in a way that is "public in nature," The Sun concludes poorly. The M.G.L. states, "It shall be unreasonable to so conclude ... if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion."
- Leahy, "in a public nature" disclosed "he reached out to the Ethics Commission to seek an opinion ..." This was reported on 2/23/14. The deadline for applicants to file was 2/28/13.
Yet, for some odd reason, The Sun keeps fluffing this misdirecting spin:
"Leahy submitted five names of those he wanted interviewed on Friday, March 7, as required, but did not file his written disclosure of his relationship with Ramirez until Monday, March 10." (Link)
I read The Sun as pushing that Leahy needed to file PRIOR to March 7th. Where in the M.G.L. does it say that?
As for the question, SHOULD John Leahy be involved in this process, I'll simply note Rita Mercier's assertion that 'this is the most important job the City Council has.' Based on that, of course he should.
Besides,
This has nothing to do with the fact that Kevin Murphy fails to meet the criteria mandated in our Plan E Charter. (Link)
(bold mine)
"He shall be appointed on the basis of his administrative and executive qualifications only, .."
Here is my idle comment. If Mr Leahy is forced to recuse himself and Mr Ramirez gets the job, does that mean that Mr Leahy might just as well resign as a City Councilor, as he would be barred from voting on any motion that impacted Mr Ramirez as City Manager or the Management of the City by the said City Manager? That would be interesting and a thwarting of the public will.
ReplyDeleteTo give the flip side, we would not expect the Chairman of the License Commission to jump ship if Rep Kevin Murphy got the job, would we? (Secret Answer: Not me.)
The late Father John McHugh used to say Lowell was a City with five last names. Maybe he meant just The Immaculate, but the point is clear. We are pretty close knit. We need to be looking for reasons to include, not exclude.
Regards — Cliff