Council OKs $38,380 tax waiver for Maliseets

Ruling finds no conflict of interest for councilors
By Joseph Cyr
Staff Writer
    HOULTON — A request by the Houlton Band of Maliseets to waive a $38,380 PILOT (payment in lieu of taxes) drew considerable discussion from the Houlton Town Council Oct. 11, and divided the board in the process.
    It also called in to question a potential conflict of interest for two councilors, Sue Tortello and Brian Donnelly, who are employed by the Maliseets.
    On Friday, Oct. 14, Town Manager Doug Hazlett sent each councilor a letter highlighting what the town attorney’s findings were on the matter of conflict of interest. The Houlton Pioneer Times obtained a copy of that letter and its findings are listed below:
    “The town charter which is the controlling standard for councilors states a councilor may not have a substantial financial interest, direct or indirect, or by reason of ownership of stock in any corporation, in any contract with the town, or in the sale of any land, material, suppliers or services to the town.
    “State statutes indicate a conflict exists where the official is an officer, director, partner, associate, employee or stockholder of a private corporation, business or other economic entity … only where the official is directly or indirectly the owner of at least 10 percent of the stock of the private corporation or owns at least a 10 percent interest in the business or other economic entity.
    “The second reference in state statutes pertains to the avoidance of appearance of conflict of interest.  Here the state says that every municipal and county official shall attempt to avoid the appearance of a conflict of interest by disclosure or by abstention.
    “The question is whether the item voted on; i.e. the forgiveness of the pilot payment; bestows a ‘substantial financial benefit’ on the councilor voting. It is the opinion of Mr. Nelson, Town Attorney for Houlton, that no such benefit was bestowed on any councilor as a result of that vote,” Hazlett wrote.
    The Maliseets requested their PILOT payment for 2011 be waived based on the tribe’s funding of two improvement projects — Phase II of road construction on the Currier Road at a cost of $1.1 million and contributions of $137,516 to a storm water runoff project for Pearce Brook. Both of those contributions were funded by grants the tribe secured.
    The measure passed by a vote of 4-2 with councilors Mike Jenkins and John White opposing the measure. Council chairman Walter Goodrich abstained from voting, as is typically the case. Normally, the chairman of the council only votes to break a tie.
    During the discussion, the issue of whether the two councilors should be voting on the subject arose. Both Jenkins and White felt Donnelly and Tortello should abstain from voting on the matter, citing it as a conflict of interest. Last year, when the same subject was brought to the board, those two councilors abstained from voting, for the same reason. The Maliseets’ request failed at that time.
    This year, however, Tortello and Donnelly had a change of heart and felt the matter was not a conflict, based on consulting with Houlton’s town attorney. The $38,000 in question was not included in the 2011 budget as revenue, as it had been in the 2010 budget.
    According to Hazlett, the Maliseets have funds that the town does not have access to and have used that money to help fund numerous projects the town has benefited from over the years.
    “There is quite a lengthy list of things that have been done over the years,” he said. “The most recent, which fall in the same time period that the PILOT is due, are the $1.2 million extension of Currier Road and $137,000 for storm water abatement in conjunction with S.W. Collins’ expansion.”
    Hazlett said the Currier Road project will benefit both the tribe and the town once it is completed. The Currier Road, which is a town-owned road that runs along tribal land, is located off North Street in Houlton and connects to the Carson Road in Littleton. A portion of that road is currently graveled and will be replaced with asphalt pavement. The tribe plans to begin construction in the spring of 2012, according to the document presented to councilors.
    Hazlett added that because the $38,000 was not included as revenue in the current fiscal year, there would be no impact to the town’s budget in granting the abatement.
    Councilor Jenkins disagreed with those statements.
    “I appreciate all the good work that is done with the Band,” he said. “But all these grants they receive, don’t they also have to benefit the Band as well as the town.”
    Tortello said she was comfortable weighing in and voting on the issue after consulting with the town’s attorney. She said the tribe “graciously” agreed to rescind their PILOT request last year because the town had not prepared for such a request.
    Tortello added the two projects in question this year did have a benefit to the town and as such, she felt the request to waive the PILOT request was justified.
    “I would like to see us develop some type of consistent criteria for reviewing this request each year,” she added. “That would make it fair and non-partial for both parties.”
    Tortello also felt the council should review the projects that the tribe does on a yearly basis that coincides with the tax year when considering future PILOT requests.
    Donnelly posed the following question to his fellow councilors.
    “If the town was approached and was told it had an opportunity to fully-fund a project to re-do an entire road in the amount of $1,151,000 and all the town had to do was match $38,000, would we even think twice about it?” he asked.
    Councilor White expressed his concerns on the request.
    “I appreciate the fact that the tribe has done things to improve the town,” White said. “But this is grant money they would still be getting regardless. We are ever increasingly dependent on revenues in our budget, yet we seem to be waiving every request so far that has come to us.”
    He added the $38,000 could be used to help fund the Drake’s Hill clean-up project of local artist Jerry Cardone, which the town went over budget on.
    “Given the debate about it last night, I’ve asked our town attorney to send me the statutory reference that speaks to when a conflict of interest arises,” Hazlett said. “This issue is defined in law. There are certain circumstances where the law says a councilor cannot vote. He (Nelson) was consulted prior to the meeting and said this circumstance does not meet the legal definition of a conflict. However, beyond that, the general rule of thumb is that a councilor may elect not to vote if they feel the public might see it as a conflict of interest. It is their decision.”
Fireworks ordinance considered
    Councilors also discussed whether the town should have an ordinance regulating the use of fireworks within town limits. Because the state legislature passed a bill that allowed the sale of fireworks within the state, shooting off fireworks will be legal as of Jan. 1, 2012.
    “Many on the council expressed they were sensitive to the public’s right to have fireworks as sanctioned by the new law, but at the same time there is a need to make certain we protect the public,” Hazlett said. “They did not seem to have any great interest in banning the sale of (fireworks) since it will do nothing to keep them from getting into town. The issue becomes one of, if there are places in town, or times, when their use constitutes a public safety hazard.”
    Hazlett informed the council that the Houlton Fair Committee, which hosts the town’s agricultural fair during the Fourth of July festivities, was looking to ban the use of fireworks on fair grounds during their event. That does not include the official fireworks display.
    The council will explore what other communities have developed for ordinances and review them at the planning board, which will bring forth a recommendation to the council at a later date. This will involve a public hearing as well.
Public comments
    During the public speaking portion of the meeting, resident Carl Lord Jr. asked the council to consider allowing those in the audience to comment on each individual agenda item during the course of the session, as opposed to only allowing comments at the beginning of each meeting.
    “I would like to see it (public comments) put back on all of the items that you have (on your agenda),” he said. “Comments (made at the beginning of the meeting) can get lost.”
    He also expressed his disapproval of the waiver request by Maliseets.
    “I think it’s a good thing that they helped us,” Lord said. “Every taxpayer in Houlton was involved with that too. I think it was a great partnership, but to ask for taxes to be waived? I don’t think that is the way to go.”
    Lord said his property tax bill has gone up $118 over the past three years.
    Linda Raymond, a spokesperson for the Maliseets, urged the council to consider the waiver request and referenced an article detailing the many projects the tribe has contributed to in recent years.
    “This is an awful lot of money that we have put into the town of Houlton and we really think we should be getting something in return for it,” Raymond said.