Improper warning forces rescheduling of Grafton special meeting; Sands questioned on meeting with Iberdrola

By Cynthia Prairie
©2016 Telegraph Publishing LLC

What was supposed to be a special meeting of the Grafton Select Board to begin — and maybe even fill — the vacancy left when Gus Plummer resigned exactly one week previous turned into an informal session in which new Town Administrator Emily Huff plead mea culpa for improperly warning the meeting.

That happened, she said, when she failed to post the warning on the town’s website. It was only discovered late Monday, when Garrett Baxter, an attorney with the Vermont League of Cities and Towns, went over the process with Huff and discovered the slip-up. Still, 30 people showed up at the Grafton Elementary School for the 6 p.m. meeting, including Mary Howard Feder, who set up a table bearing her homemade chocolate chip cookies “in anticipation of a bit of tension tonight,” she said. The tablecloth bore two signs — in paper frames — that read “Cookies to put everyone in the right frame of mind.”

The thick, chewy cookies seemed to do the trick.  Once inside the gymnasium-cafeteria, interim board chair Al Sands did not call the meeting to order — which was also attended by board members Ron Pilette, Skip Lisle and Cynthia Gibbs — and residents gathered round to listen as Huff explained her error and apologized to all.

Sands then said a properly warned meeting would indeed be held Thursday, May 26.  You can view the agenda here. Sands said if the board could come to a consensus about replacing Plummer, who resigned after receiving a threatening note, it would have a replacement. “If not, we’ll begin the (townwide) voting process … which just seems fair,” he said.  The cost of a townwide vote is “usually about $300,” said Don Dougall.

Sands questioned on meeting with Iberdrola

Several residents departed, but a number stayed seated and talked. Then a small group approached Sands, asking about a private meeting he and several other Grafton residents had last week  with representatives of Iberdrola Renewables, the Spanish wind energy company that hopes to build eight 500-foot wind turbines in Grafton and 20 more in Windham. The project has divided the town among those who are against the project, those who are for it and those who are either undecided and/or want the project to go through a process.

One resident, who would only identify herself as Kate, told Sands, “I have a problem with you spreading a threat that Iberdrola would sell to someone else if we vote them down. I think you are spreading a rumor that this is a (hopeless) situation.” She was referring to Sands’ contention that if the project is voted down in an as-yet-unscheduled town-wide vote on the project that Iberdrola has said it would abide by, the company might sell its research to another wind company that would not be bound by the vote.

Sands responded that both he and an anti-wind attorney that he invited to last week’s Select Board meeting agreed that Iberdrola selling its stake was possible.  Last week, attorney Richard Saudek said that he “would bet that if this project gets built, within five years someone else will own it. They’ll flip it. ”

Both Kate and Liisa Kissel suggested that Sands’ meeting with Iberdrola was in violation of state law. Kissel called it “a serious violation,” and added, “You can’t, as a Select Board member, have a private meeting with Iberdrola … I think the rest of the Select Board has a right to know about these meetings.”

Kate said, “You are going against the laws … that’s pretty unethical.” As for the meeting with Iberdrola, Kate asked Sands if the wind company picked up Sands’ tab for dinner and drinks. While Sands responded, “No,” Kate suggested she wanted to see the receipt.

Meanwhile, another resident told Sands, “You look like a lobbyist for Iberdrola.”

Resident David Acker told Sands that he was just trying to protect his friends in Grafton — “people you grew up with” — from what could happen should the wind farm go through. He implored Sands for more “transparency. Why can’t there just be transparency?”

Sands said that not only had he not made up his mind about the issue, he intended to let the voters decide when it comes up for a vote.

‘We have met with many people at many different times including people who hold elected positions and those who do not. Some have requested private meetings out of concern for how individuals have been treated by people in the community that oppose the project at Stiles Brook.’

Paul Copleman
Ibedrola Renewables

In an earlier interview, Sands defended the meeting, saying that at Town Meeting several years ago, voters were asked if board members — of which he was at the time — should continue conversations with Iberdrola. ­“There was no action on the article because people said the board was supposed to talk to Iberdrola. I’ve continued to talk with Iberdrola” as a private citizen and as a member of the board, he said.

According to Sands,  seven to eight townspeople were present as were eight to 10 Iberdrola representatives, and no other Select Board members were present. “We have a group of people that we’ve labeled pro-process. There weren’t anti-wind people there. We haven’t been able to have a good dialogue with them.”

When asked what the discussion was about, Sands said, “We talked about the data collection, time frame, the field work they had to do.”

A spokesman for Iberdrola said that the company routinely holds meetings at homes and other venues in the area.

“We have met with many people at many different times including people who hold elected positions and those who do not,”  Paul Copleman of Iberdrola said in an email. “Some have requested private meetings out of concern for how individuals have been treated by people in the community that oppose the project at Stiles Brook. … There are many members of the community who want to have a civil dialogue with … Iberdrola Renewables to continue to learn and weigh their position on the project.”

Governing select boards’ actions

Since several residents have publicly claimed that Sands’ actions were “­illegal,” including inviting attorney Richard Saudek to speak during the Select Board meeting on May 16, The Telegraph looked into what laws, practices and policies govern a town official’s actions. To do so, we approached the Secretary of State’s Office, the Vermont League of Cities and Towns and Grafton town government. While state law governs all, VLCT also applies best practice principals and the Town of Grafton has a conflict of interest policy.

The Telegraph sent Jenny Prosser, general counsel and director of municipal assistance for the Secretary of State’s office, the following questions — in bold. Her answers follow in italics. Following the questions is a section on best practices and conflict of interest.

Is a Select Board chair required to get a vote of the board prior to putting a guest speaker on the agenda?

I don’t know of anything in statute that necessarily requires a select board vote before including a guest speaker on a meeting agenda.  … A board’s rules of procedure may speak to who is responsible for developing agendas — my understanding is that frequently the board chair, or perhaps the town manager, takes this on, with or without input from other board members.

Here is the agenda for the meeting in which Saudek spoke. He is listed as No. 7. According to Town Administrator Emily Huff, she and the chair — at the time Gus Plummer — put together the agenda with input from other Select Board members.

Are there any statutes in Vermont that would bar a Select Board member from meeting with a private company that is hoping to do business within his or her town in a private, unannounced meeting where no other Select Board members are present?

I am not aware of any state law that generally prevents a select board member from meeting privately with individuals or organizations to discuss town business.  Three caveats to this:  

• First … a town may have a COI (Conflict of Interest) provision in its charter, or may have adopted a COI ordinance or policy, that provides additional guidance.
• Second, ex parte communications in the context of quasi-judicial proceedings can cause constitutional due process concerns. 
• And third, the open meeting law, 1 V.S.A. §§ 310-314, prevents a quorum of board members from gathering to discuss town business outside of a duly-warned public meeting (unless an executive or deliberative session is permissible under statute).

Is that board member required by law to tell other Select Board members of his meeting before or after?

Unless in the context of a quasi-judicial proceeding, where ex parte communications can cause due process concerns, I know of nothing in state law that would require a select board member to tell other board members about having met privately with individuals or organizations to discuss town business.   … a town might have a charter provision on point that would apply.  A selectboard may also have adopted its own policy to address this type of situation.

Best practices and conflict of interest

The two other methods for prescribing behavior are best practices and conflict of interest policies. Wikipedia defines “Best Practice” as “a method or technique that has been generally accepted as superior to any alternatives because it produces results that are superior to those achieved by other means or because it has become a standard way of doing things, e.g., a standard way of complying with legal or ethical requirements.”

In an interview on Tuesday, Maura Carroll, executive director of the Vermont League of Cities and Towns, said,   “Best practices are typically a broad category of ways to operate in a general policy. … VLCT will look at the law and at other experiences and will provide advice to a specific board member.” If that board member does not call for advice, she said, a town’s conflict of interest policy “is a good document to have to guide behavior in a community.”

Grafton does indeed have a conflict of interest policy, which was adopted in 2012. It applies to all elected, appointed and hired town officials and employees. The three-page policy, which you can read here, addresses situations where  officials and employees or their family members may have a financial interest in a town transaction and where officials and employees may be in a quasi-judicial role governing a situation. It does not apply to personal or political views.