An article, “Ethics for Quasi-Judicial Boards”, by freelance writer Douglas Rooks in the May 2007 issue of the Maine Townsman discussed bias and the appearance of bias of municipal public officials. Three examples were cited including a situation in Manchester where the chairman of the Planning Board is an abutter to a proposed cell tower that’s being reviewed by the Planning Board. The article stated that the “applicant requested that the chairman recuse himself because of potential bias but the chairman refused securing an opinion from town counsel backing his position.” The property owner where the tower is proposed and his lawyer met with and urged the Selectmen to request that the chairman recuse himself. A majority of the Selectmen asked the chairman to recuse himself, which he did. Auburn municipal attorney Curtis Webber who was not involved in this case was asked by reporter Rooks to comment. In the article Webber indicated or strongly implied that the chairman should have recused himself early in the process before this project became publicized in the local paper to avoid an appearance of bias.
There was a major omission, which was not shared with readers of the article or with Curtis Webber apparently because Douglas Rooks was unaware of it. Early in the review process the property owner where the tower is proposed mentioned to the Town Manager that he was concerned that the Planning Board chairman was an abutter to his property. His comment was communicated to me and I promptly discussed with the town’s attorney the property owner’s concern as well as three reasons why I believed I did not have a bias. The reasons I gave were: 1) There is a self-storage facility which I own abutting his property. The business at and the property value of the facility would not be negatively affected by the proposed tower. 2) Our residence is located just west of the storage facility and the side of the house faces where the tower is proposed. The view from this side of the house is effectively screened by nearby mature fir trees. 3) Our residence is 3/10 of a mile from the tower site. The town attorney opined these were good reasons indicating I did not have a bias and recommended that I publicly state that I am an abutter, and present the three reasons at the next Planning Board meeting. He suggested that I ask the Planning Board to vote whether they think there is bias or appearance of bias and then recuse myself while the Board discusses and votes. I followed the town attorney’s advice. The Planning Board discussed the issue. No complaints were voiced by the applicant during the Board’s deliberation. The Board voted unanimously that I did not have bias or appearance of bias regarding the tower. This was done before there was any publicity on this issue.
After reading the May Townsman article I called Attorney Curt Webber and shared what had been omitted in the article. He opined that I “had done exactly the right thing”. He further indicated that since the applicant did not negatively comment during the Planning Board’s deliberation on this issue their right to complain was “closed’ after that. The property owner began formally complaining in a letter to the Board a month later.
So the remedy according to Attorney Curt Webber is not restricted as a public official to simply recuse yourself if you’re an abutter. Early in the review process you have the option of publicly stating why you believe you are not biased or have the appearance of bias. Have the Board you’re a member of vote whether they perceive a bias and act accordingly. Curt Webber can be reached at (207) 784-4563 or at email@example.com.
Fred Snow, Chairman
Manchester Planning Board