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Resident questions counsel's view of manager act

Arlington resident Aram Hollman submitted this letter to the editor. It is in response to this news report, headlined "Veteran meeting member raises legal issues; town counsel responds." 

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Re the charge that Select Board member Len Diggins' service on the Transportation Advisory Committee, the Housing Plan Implementation Committee and the Arlington Heights Neighborhood Action Plan Implementation Committee violates the Town Manager Act, which strictly limits the additional positions that Select Board members may hold, Town Counsel Doug Heim quoted the relevant law:

"'A member of the Select Board, or of the school committee, or of the finance committee shall, during the term for which the member was elected or appointed, be ineligible either by election or appointment to hold any other town office, except the office of town meeting member and except membership on a committee, board or commission when participation of such member is required by Town Bylaw or by a vote of the Town Meeting."

Heim then went on to decide that Diggins' service on these bodies did not violate the Town Manager Act. However, Heim did so by substituting his own interpretation of the purpose of the act for the precise wording of the article.

Broad default

The wording sets a broad default -- that no such service is on additional bodies is allowed -- and then makes limited, narrow exceptions. The relevant, critical phrase, defining a narrow exception, is "... except membership on a committee, board or commission when participation of such member is required by Town Bylaw or by a vote of the Town Meeting." To focus more closely, "is required by Town Bylaw or by a vote of Town Meeting."

If Counsel Heim had determined the presence of a Select Board member on one of these committees was "required by town bylaw or by a vote of the Town Meeting," the issue would have been settled; Select Board memer Diggins' participation would not violate the act.

However, Heim did not do so.

Instead, he cited a variety of alternative facts to justify his conclusion that Diggins' service did not violate the act.

TAC's rules

With regard to the Transportation Advisory Committee (TAC), Heim said that the TAC was "created by the Select Board to advise the Select Board, and contemplates Select Board member participation." That may be true, but Heim mentioned neither a town bylaw nor a Town Meeting vote requiring a selectman's service, and that is what the act requires.

Furthermore, the TAC's own "Rules for Governance, Article III: Membership" do -- not -- require the appointment of a Select Board member. Any requirement that one of its members be on the Select Board would have been written here.

With regard to the Housing Plan Implementation Committee, Heim wrote, "Mr. Diggins is specifically serving as the Select Board liaison to such committee and was voted by the board to serve in that capacity." Again, all that may be true; such a Select Board vote is not an acceptable substitute for what is required, either a Town Meeting bylaw or a Town Meeting vote requiring participation by a Select Board member. Again, a Select Board vote is not sufficient to put Diggins on that committee.

Heim clearly fails to understand this point. He wrote, "'In sum, as far as I understand it, Select Board service on these bodies is either contemplated (if not called for), and/or is relative to ad hoc advisory bodies, which are not decision-making authorities, and are not created by Town Meeting, the town bylaws (or the General Laws, for that matter).'"

Deemed irrelevant

All of these criteria are irrelevant. What is "contemplated" is irrelevant, especially since Heim's use of the passive voice sidesteps who is doing the contemplating. Whether these committees are "ad hoc advisory bodies, which are not decision-making authorities," is irrelevant. How these committees were created is irrelevant. All that is relevant is whether a Town Meeting vote or town bylaws require the membership of a Select Board member on either committee. That is not the case.

Diggins is to be commended for his willingness to undertake additional public service beyond his position on the Select Board. However, the Town Manager Act was written to prevent individuals who serve in government from having too much influence by having too many positions. Its wording, combined with the complete lack of either a Town Meeting bylaw or Town Meeting vote requiring that the committees he serves on include a Select Board member, means that he cannot serve as a member, Heim's creative interpretation notwithstanding.

Diggins is of course welcome to attend any committee meetings he wants. And the Select Board is free to appoint him as liaison to any committee it wants. But no Select Board member can be a member of any such committee, unless a Town Meeting bylaw or Town Meeting vote requires that.

This letter to the editor was published Tuesday, Feb. 9, 2021.

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