TRACY CESAN
SOUTHWICK – Town Counsel Kenneth Albano rendered an opinion regarding conflict of interest questions for the Board of Selectmen.
In September, Board Chairman Arthur Pinell asked Selectwoman Tracy Cesan to request opinions on three specific scenarios. The first was whether or not Cesan, as a board member, could participate in collective bargaining negotiations among union employees. The second question was whether she could participate in revising the Town Employee Handbook, given the fact that it impacts Cesan in her capacity as administrative assistant for the Southwick Fire Department. The third question was whether or not Cesan could participate in some or all negotiations with department heads regarding their respective employment agreements.
Albano, of Bacon and Wilson, said Cesan may participate in negotiations if her non-union benefits are independent of those negotiations.
“If your personal non-union benefits are somehow dependent on the results of the union negotiations, then your personal interests would be foreseeably affected,” Albano stated. “Any foreseeable financial impact to your interests would be enough to violate the section.”
Albano said the question is whether or not the impact to Cesan’s personal interest is reasonably foreseeable. He said the state Ethics Commission analyzed the “foreseeable future” language when considering whether a zoning decision could affect the personal interests of those who owned stock in a corporation that could benefit from said zoning decision. The commission determined that since the zoning decision would be unlikely to be material to the reasonable investor’s investment decisions, any personal benefit was not reasonably foreseeable because the effect of the proposed zoning changes on the corporation’s financial interest is not sufficiently identifiable.
“Based upon the foregoing if it is reasonably foreseeable that the outcome of the union negotiations may have an impact upon your personal financial well being, I would caution you from union negotiations unless it can be said that the non-union contracts are truly independent,” found Albano.
He also said Cesan should file a written disclosure with the town clerk regarding her interest as an employee of the fire department in order to comply with a law under which she must appear to be unbiased to a reasonable person.
As far as employee handbook revisions, Albano said Cesan may participate in revisions as long as she does not participate in any revision that could foreseeably affect her personal financial interests. Albano found that Cesan should not participate in any negotiations relative to the fire chief and chief administrative officer (CAO).
“I theory the CAO has oversight over the town Fire Department but you have oversight over the CAO as a Selectboard Member,” stated Albano.
Albano further found that Cesan should not participate in negotiations unless the employment contracts are truly independent of each other.
“I would recommend you abstain in participating in the department head negotiations unless each and every contract and discussion remain independent of each other,” Albano said. “In other words, the fire chief’s contract should not be viewed in the same light as any other.”
Albano said because Cesan holds two municipal positions, any exemption from Mass General Law 268A, paragraph 19 self-dealing provisions would require approval from the rest of the board.
“It is my understanding that the remaining Board of Selectmen will not approve said exemption at this point and time,” Albano wrote.
