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Selectman’s involvement in wind suit questioned by Fairhaven officials

FAIRHAVEN – The Board of Selectmen is locked in a dispute over whether newly elected member Bob Espindola can vote on issues concerning wind turbines.

Espindola, who was elected in April, was previously a plaintiff in a lawsuit against the town that tried to stop the construction of two, 397-foot turbines on town-owned land off Arsene Street. He dropped out of the suit in March when he decided to run for office, but Selectmen Chairman Brian Bowcock contends that Espindola’s involvement in the still-active suit means he cannot vote on issues related to the turbines.

“Once you sign onto that, you can’t just drop out and the conflict is gone,” Bowcock said. “He really has a conflict if there is anything discussed on the turbine issue, and he needs to recuse himself.”

Usually when there are ethical questions involving Fairhaven officials, Town Counsel Tom Crotty advises those involved. Espindola has asked the selectmen to allow him to seek outside advice because Crotty himself is representing the town in the turbine lawsuit.

“My concern in seeking alternate counsel was simply because town counsel was involved in the same lawsuit that’s in question,” Espindola said. “I think it would be in everyone’s best interest if I did that.”

Bowcock has suggested that Espindola ask the advice of the State Ethics Commission without an attorney and at no cost to the town, if he does not want to use Crotty.

Espindola said he is considering going to the State Ethics Commission, but is still waiting to hear if he can use outside counsel.

Until then, Espindola will continue recusing himself from turbine-related discussions, as he did for an article put before Town Meeting on May 5.

“One of the reasons I ran for office was people sometimes think elected officials have ulterior motives because our process seems secretive,” Espindola said. “I want to change that, starting with myself, so I am not going to be involved in this issue until I have an official written opinion.”

Crotty’s role as town counsel has been questioned in past wind disputes. In March, the Zoning Board of Appeals voted to seek outside counsel when Windwise questioned whether the size of the land holding the turbines was allowed by Fairhaven’s zoning bylaws. The board voted to seek its own legal counsel because Crotty had helped the town selectmen develop the bylaws.

The zoning board never got its own counsel because under Massachusetts State Law, any appointed official, like a town attorney, can be exempted from conflicts of interest by the officials who appoint them.

In April, selectmen exempted Crotty in a letter which stated the conflict was “not so substantial as to be deemed likely to affect the integrity of the services which the Town of Fairhaven may expect from you.”

State law does not restrict the actions of municipal employees based on their involvement in lawsuits against the town, but Crotty said Espindola’s case is not so simple.

Because Espindola lives within 1,500 feet of the turbines, Crotty contends that he has a financial interest in the turbines, which could affect his property value, although Espindola’s John Street home does not directly border the Department of Public Works’ property where the turbines are located.

“If there is a project in your neighborhood, near where you live, you have a financial interest in that project,” Crotty said. “You cannot be involved in making decisions about the project.”

The Ethics Commission’s past rulings are split as to how far away a town official must live from a site in order to avoid conflict.

In 1989, the commission voted that a member of a Conservation Commission did not have a conflict of interest with a property owner who lived nearby to him because he was not a direct abutter to the property.

But in 1992, the commission ruled that a member of a Board of Health could not participate in votes or discussions on a project “which would be adjacent to (their) neighborhood” because proximity to the project gave the board member a financial interest. In that case, the commission did say an exemption could be made if the financial interest of the board member “is shared with a substantial segment of the population of the municipality.”