BOA considers next move on fossil-fuel divestment petition
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By David R. Smith

There isn’t a precedent to go by on what happens if a board of aldermen, selectmen or city council catches the attention of the state Ethics Commission in voting for its retirement board to divest of any investments connected to the fossil-fuel industry, so members of Somerville’s BOA will have to decide whether they want to be that precedent and accept any consequences that may come.

A group of 129 residents, many connected to the group Fossil Free Somerville, had submitted a petition asking the city to divest from any such holdings to the best of its ability and to ensure that city pensions going forward are not supported from investments connected to that particular industry.

The BOA held a public hearing on the petition March 13. Before the hearing could delve into the issue, though, City Solicitor Frank Wright cautioned the board about even voicing an opinion on the matter out of a concern that it could be perceived as a conflict of interest.

“The opinion was this board could not take any action or participate in any discussion,” Wright said at the aldermen’s meeting last Thursday. “The members of this board are members of the retirement system, and therefore any action taken could positively or negatively impact those investments.”

His reappearance before the board came after aldermen asked him to further research the matter after the March 13 meeting and to report back with any new information, especially as it related to the Ethics Commission.

He told the board April 10 that the opinion he expressed last month had since been confirmed by counsel for the Ethics Commission.  In response to questions from board members about what else could be done to move forward on the petition without fear of being penalized by the state, Wright’s answer was clear.

“There is no further process,” he said. “You have my opinion and the opinion of (the Ethic Commission’s) counsel. We are not enforcing agencies, so if you determine you wish to go forward and reject our opinions, you can do so -and you do that at your own peril.”

The shared opinion did not sit well with board members, many of who questioned why they could vote on other matters about which, as residents, they were directly affected.

“It’s just hard as an aldermen to wrap your mind around this one,” Ward 6 Alderman Rebekah Gewirtz said, “because as members of this Board of Aldermen, we do have a stake in the pension system, but we also have a stake in the sidewalks and roads and schools and police and firefighters and the fire department. We all use these services…on a routine and regular basis and make decisions about them. We have a stake in them. We have a personal investment in them, all the way down to if we have a pothole on one of our streets, we are allowed to ask that the pothole be repaired, so it just feels arbitrary in this case that we can’t express our opinion.”

Wright responded by saying the issues raised by Gewirtz and others could be acted on by the board out of necessity. Whether voting on a budget or voting to switch insurance carriers, which directly impacts board members, Wright said that is a matter of carrying out the business of the town, a job with which the board is specifically tasked.

“This board had to act because no one else could,” he said, adding that, by contrast, the Retirement Board is a semi-autonomous group not in the BOA’s purview.

Although the issues was being discussed among the board and was not part of a public hearing, resident and Fossil Free Somerville member Eric Fields was allowed to speak after being sponsored by Ward 1 Alderman Matt McLaughlin.

Fields said his group, like the BOA, was taken aback by the advisory opinion.

“We’re taken by surprise with this,” he said. “The board has financial interest in all kinds of things.”

Fields said in looking at the conflict of interest statute, there is a provision that states an action that might be considered to be a conflict could be taken if the general policy action is to the benefit of a substantial population of a municipality and not just an individual elected official or members of his or her family.

Given the measure to divest would be done to benefit the environment, Fields, who said his group has not consulted with a lawyer on the matter, felt the provision applied in this case.

“It seems to me this would fall clearly within a situation where ‘a substantial segment of the population in the municipality’ shares that interest,” he said.

Board of Aldermen President Bill White, however, in an opinion back by Wright, said the provision does not apply, as the majority of the city’s residents are not part of the pension system.

With the opinion apparently clear, aldermen questioned how it is other cities and towns, which includes Cambridge and Provincetown, have undertaken similar votes on fossil-fuel divestment.

“Have they been cited?” Gewirtz asked. “Have they gotten in trouble from the Ethics Commission? I’m struggling with this, and I think this is really important. We weigh in all the time on things that impact us. I would be remiss in not saying how frustrating I find this to be.”

Like Gewirtz, Ward 7 Alderman Katjana Ballantyne questioned how other communities have handled the issue.

“I’m trying to understand how they are set up versus how we are,” she said.

Wright admitted to being uncertain, but he offered a few possible scenarios.

“They may have chosen to go forward either knowing it was or may be a violation or unaware that they were potentially violating state ethics statutes,” he said.

Wright added that the Ethics Commission, in his words, is not a “watchdog group” that actively looks for violations of meetings by watching cable access broadcasts or combing through meeting minutes. Instead, he said, the commission relies on people to report possible ethics violations.

“Generally speaking, my guess would be nobody has complained and there’s been no action taken,” he said.

Given the apparent restraints to discuss –and much less to take any binding action on- the issue, Ward 5 Aldermen Mark Niedergang asked for Wright to determine if members could express themselves in other ways.

“As a member of the pension fund, I’d like a legal opinion if I can write a letter and lobby members of the Retirement Board not acting as part of this body,” he said.

Both he and Ward 4 Alderman Tony Lafuente noted that Mayor Joseph Curtatone had listed divesting from fossil-fuel investments as a priority of his administration during his inaugural address this past January, and that appeared to suggest, Lafuente said, that the city could act on the issue.

With many questions still unanswered and more information needed, White suggested the board “keep this on the table.” While acknowledging there are times when rules should be challenged regardless of consequence, such as during the Civil Rights Movement, he advised his fellow board members to take time to consider their options and feelings before moving forward.

“We may get to the point where folks will wish to proceed to take a vote, even after the Ethics Commission has been notified of this, and in effect knowingly violate an advisory opinion of the state Ethics Commission,” he said. “As president, I’m going to be hard pressed to preside over a body if they’re going to do that. Each alderman will have to examine their own conscience and decide if they think this is an important enough issue to vote directly contrary to an advisory opinion of the Ethics Commission and face a fine and whatever. But before we get to that, I want to make sure first that you’ve done your research, you’ve lined out all of the options, and then it can be up to each alderman to decide. To me, to knowingly face a sanction from the state Ethics Commission is something serious.”

What those sanctions, if any, might be is unclear, according to Wright. He said they could range from a letter of reprimand to fines. It is also unclear whether any such actions would be directed towards individual aldermen or the board as a whole.

Still, Lafuente was quick to share his opinion on the myriad of issues surrounding the petition and any discussions and actions that might be taken relative to it.

“This is a very, very serious situation the entire world is facing,” Lafuente said, “and I think we should vote on it. I think we should have a debate and vote on something like this because it’s important. Like the solicitor said, whatever comes, comes -we’ll deal with that- but this is too important of an issue environmentally for us to just go on an opinion when there’s really no precedent.”