Following the North Yarmouth Select Board vote to not promote Planning Board alternate and current chair, Paul Whitmarsh, to a full voting member due to perceived bias, new protocols are being considered for recusals.
At the August 8 Planning Board meeting, Whitmarsh admitted to no longer knowing how to address recusals. “So this past Tuesday the Select Board made clear that the Planning Board was not sufficiently looking at recusals, when not addressing a perceived bias, in addition to normal bias.”
Whitmarsh stated the Planning Board normally follows Maine Municipal Association (MMA) guidelines for determining recusals. Prior to beginning deliberations, the Planning Board asks members if anyone has a conflict of interest related to the current project. If one is noted, the Planning Board discusses the details and then votes on whether recusal is necessary.
The town’s contract planner, Ben Smith of North Star, said recusals typically happen when members have a direct financial interest in a project. “If you have a relative or close family member involved with the project or would benefit directly from a project being approved or not approved, you should disclose that.” He recommended erring on the side of making a disclosure, which would be discussed by the board to decide if it could interfere with making an unbiased decision. Smith said there are established standards for assessing direct conflict of interest.
On August 1, the Select Board stated this practice is not enough.
Vice Chair Andrea Berry said she was experiencing “a lot of discomfort” when considering whether to promote Whitmarsh from alternate to full member. Berry acknowledged the Planning Board followed accepted practices for recusals, yet questioned the standards of Planning Board decisions stating, “When I think about how we make sure that we have the highest level of integrity in the decisions that are made by the Planning Board, there is real conflicts of interest. And then there is a piece of perceived conflict of interest. And for me, perceived conflict of interest is, is second to real.”
Special counsel John Hamar cautioned the Select Board to not interfere with Planning Board decisions. “Planning Boards have a large amount of discretion in the way they conduct their business. And it should be, the [Select] Board should be very reluctant to interfere with the affairs of the Planning Board. They have a way of doing things, and for the most part, they are independent from the town.”
Charges of bias against Whitmarsh were dismissed by the Select Board with a vote of 4-0 on August 1. However, Berry said the Planning Board's vote to not recuse Whitmarsh created a perception of bias, basing this on the applicant’s allegations of bias against Whitmarsh. Berry opposed promoting Whitmarsh.
Evaluating situations based on perception fall into a gray area. “Someone may think I'm biased because I live a road over or I have done business with the applicant over the last number of years,” but Smith advised the Planning Board should discuss this sort of information.
“I agree and that's what we had been doing. However, the Select Board found that to be inadequate,” said Whitmarsh and invited Planning Board members to comment.
The applicant, Branch Renewable Energy, did not request the recusal of any Planning Board member for the August 8 meeting. However, Whitmarsh said the Select Board message about Planning Board decisions means they must be more diligent about identifying perceived bias in members.
Approximately 30 residents attended the August 8 meeting. The Planning Board's discussion of potential recusals elicited giggles from the audience.
“Well, I can start,” said Jeff Brown. “There may be a perception that I have a bias because my family used to own that sandpit; one of the persons that is heading up the opposition of this is a cousin; and I went to school with Steve Geary since I was in kindergarten.”
Alex Urquhart followed, “I disclosed this last time, but I worked with Chris for a few months a few years ago. I don't think it impacts my judgment. But I'll disclose that.”
Both Brown and Urquhart stated they believed they could objectively review Branch Renewable Energy’s project.
The Planning Board voted 4-0 to not recuse either Brown or Urquhart.
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