Conflict of Interest - 1989 - Green Pond Site Plan

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10 It is my understanding that Ms. Hand is an officer of the Davisville Association Board of Directors. It is my further understanding that some of the members of this Association, including members of the Board of Directors, oppose the application of Green Pond. It is my further understanding that the Association may have voted to oppose the application. However, based upon my conversation with Ms. Hand, it is my understanding that she has not participated, directly or indirectly, as a member or Director in any Association vote or activity indicating an opposition to the application of Green Pond. It is my opinion that Ms. Hand would not be in violation of the provisions of Chapter 268A if she sat as a member of the Board in deliberating the application of Green Pond. CHARLES SWAIN It is my understanding that Mr. Swain owns the Edwards Boat Yard Inc., a business which is engaged in direct competition with the applicant, Green Pond. It is my further understanding that there are very few marinas/boat yards in this part of Falmouth and that each of these businesses competes for a common source of clientele'. It is my opinion that Mr. Swain should disqualify himself from participating as a Board Member in any deliberation involving the Green Pond application. I believe that Mr. Swain would be guilty of a violation of the provisions of Chapter 268A if he did so participate. Based upon the foregoing opinion, it is clear that two of the nine members of the Board should disqualify themselves on the basis of Conflict of Interest as set forth in Chapter 268A. This would leave seven members of the Board available to participate in this deliberation. This would constitute a Quorum and therefore the Rule of Necessity could not be invoked. In the event that Mr. Tavares declines to file a Section 23(b)(3) disclosure, he should not sit. It is my opinion that in this event be would be disqualified from sitting by virtue of Chapter 268A. This would reduce the number of available members to six. A Quorum would still be present, and the Rule of Necessity could not be invoked. In the event that Mr. Tavares is disqualified and Mr. Crocker disqualifies himself on the basis of common law bias and prejudice, you would not have a Quorum, as the available members would be reduced to five. At this point of time, a difficult decision is presented as to whether or not the Rule of Necessity may be invoked. It is clear from the prior rulings of the Ethics Commission that the Rule of Necessity may only be invoked in the instance where a Quorum is unavailable due to conflict of interest. I can find no precedent which controls the situation wherein a Quorum is unavailable due to a combination of disqualification for conflict of interest and common law bias or in the instance of disqualification for common law bias alone.