Grafton town attorney sees ‘no violations’ in Sands’ meeting; suggests use of Iberdrola-funded escrow account

By Cynthia Prairie
©2016 Telegraph Publishing LLC

Grafton town attorney Robin Stern, in an email to Town Administrator Emily Huff and copied to Select Board chair Al Sands and Town Clerk Kim Record, says that she has found no violation of the Grafton Code of Conduct on Sands’ part in meeting with Iberdrola Renewables and has found that Section IV of the code to be problematic.

She also is recommending that the town accept Iberdrola’s offer of an independent escrow account to hire an attorney to conduct negotiations with the company.  This was in response to a letter from Sands asking for clarification on the issue. You can read that letter here.

Concerning a possible violation, which The Telegraph wrote about last week, Sands had telephoned Stern seeking her opinion. The possible violation was raised by anti-wind activists during a special meeting held on May 26 to discuss procedures for replacing former board member Gus Plummer. They pointed to Section IV of the 2-year-old Code of Conduct, which states:

In any matter before a Public Body, a member should not communicate with or accept a communication from a person the Public Body has reasonable grounds for believing is a party to the matter outside of a public hearing. The presiding officer of the Public Body may engage in such communication, if and only if, there is notice and opportunity to participate given to all parties in accord with 24 V.S.A.§ 1207 (a). A member should disclose any such communication at an open meeting of the Public Body prior to any consideration on the matter, and the member should recuse himself or herself, if appropriate. A “party” as used in this paragraph means a person who:

A. Holds an interest or has an agreement to acquire an interest in a business entity or the property of a business entity which desires to enter into any agreement with the Town, where the Town’s entering into the agreement depends upon the official action of the Public Body.

But Stern, who said she also consulted with Sarah Jarvis, an attorney with the Vermont League of Cities and Towns who is familiar with the Grafton wind issue, wrote in her email: “The Selectboard sits as a legislative body, not generally as a quasi-judicial body (in which) … having conversations with parties before the board (without) … other board members, the other parties or the public about a pending matter… is inappropriate. … that is not the situation with a Selectboard in its legislative capacity,” Stern  added that that would “be an impossible and irresponsible standard.” (You can read the full email here.)

The current Code of Conduct ‘goes outside the parameters of the Vermont League of Cities and Towns Model Conflict of Interest policy.’

Robin Stern
Grafton town attorney

She then pointed out that the current Code of Conduct “goes outside the parameters of the Vermont League of Cities and Towns Model Conflict of Interest policy” and that she believes Section IV of the code “relates to the SB when it sits in a quasi-judicial capacity in contested hearing, which is a rare event.”

Stern related a suggestion from Jarvis, who said that, “Grafton (should) take a look at the town of Shelburne’s recently adopted conflict of interest policies.” And she suggested that Section IV be clarified to reflect that it “is applicable to a quasi-judicial setting.”

As for the escrow account, which some anti-wind interests have called ‘a bribe,’ Stern wrote, “Given what a firestorm the wind issue has created, it makes sense to hire an attorney to investigate the various impacts, positive and negative … The attorney, rather than one or two Selectboard members, can have meetings with company officials as state agency personnel and opponents.”

She ended by writing, “If the wind company is offering to fund the town’s legal expenses to research and identify the issues (both positive and negative impacts), I would recommend taking advantage of this funding and working on an escrow agreement beneficial to the town in order to obtain what should at least be perceived as unbiased information.”