If a Disclosure of Appearance of Conflict of Interest form is filed deep in the forest, does it make a sound?
That is at the heart of a debate about whether Great Barrington Selectboard member Ed Abrahams should have publicly disclosed — more on “publicly” in a moment — that his fiancée, who lives with him, owns another house that she lists on Airbnb as a short-term rental (STR).
And if, as an outspoken opponent of various proposals under consideration to regulate STRs, he should have recused himself from the debate and from any upcoming votes to place a proposed STR bylaw on the town meeting warrant this spring. Or, more specifically, that because of this very close financial connection, Abrahams should have recused himself regardless of whether he feels that he can be impartial, as he stated both on his disclosure form and in a letter to the Edge.
The STR proposals, first put forward in October by selectboard member Leigh Davis, have been under consideration by the Great Barrington Planning Board and Selectboard and have prompted a healthy, necessary, and oftentimes heated debate. They would potentially regulate STRs by limiting if, and for how many days per year, property owners may rent their houses and apartments as STRs. The new bylaw may also limit whether non-resident owners and real-estate investors may use properties currently owned or acquired in the future as short-term rentals if the property is not their primary residence.
Many community members and interested parties have shared their views at town-board meetings since last fall, with most speakers opposed to limiting STRs. Clearly, any changes will have a significant financial impact on those who earn money from owning and operating STRs, including Abrahams’ fiancée.
All of this comes amid urgent debate here and nationally about a serious, escalating housing-affordability crisis that is creating challenges for millions of working people and families. Cities and towns, large and small, are grappling with the STR issue and deciding if restrictions can help address any part of their housing crunch. Here in the Berkshires, many residents also have concerns that too many STRs may change the nature of their neighborhoods and community.
Some localities are banning STRs outright without a special permit — as the Massachusetts Supreme Judicial Court has said is permissible — while others are imposing limits and restrictions. San Francisco, which is confronting a years-long housing crisis, now limits STRs to someone’s private residence where they reside at least 275 days a year. Many towns in Massachusetts regulate STRs to require registration, payment of various taxes and fees, and requirements to meet health and safety mandates. Others, like Stockbridge, limit corporate ownership of rental properties.
As reported both in The Edge and The Berkshire Eagle, Abrahams — who along with other local elected officials and municipal employees must complete a biannual, state-mandated ethics training — completed a conflict-disclosure form, “Disclosure of Appearance of Conflict of Interest As Required By G.L. c.268A, Section 23(b)(3),” and, as required, filed it with the Great Barrington Town Clerk on November 16, 2021. Abrahams conflict-disclosure form can be found here.
He detailed some, but not all, of the relevant facts regarding his fiancée’s STR, notably leaving out a $200,000 mortgage loan, since repaid, that he extended for a short period to help her finance the purchase. He told The Edge that he called the state ethics commission to confirm that his fiancée was not considered immediate family — to ensure he didn’t run afoul of state ethics laws — and was told to file the appearance-of-conflict form with the Great Barrington town clerk.
On his disclosure form, he checked the box confirming that, “Taking into account the facts that I have disclosed above, I feel that I can perform my official duties objectively and fairly” [see image at right]. The form notes, “If you cannot confirm this statement, you should recuse yourself.”
And that was it. For more than three months, he made no public statement about this information at numerous meetings of the selectboard or at a joint meeting of the planning and select boards to discuss the STR proposals. From early October, in fact, six weeks prior to filing his disclosure, Abrahams argued strenuously against Davis’ proposals to limit STRs. That he felt there was at least an appearance of a conflict of interest — one that mandated, at minimum, filing details with the town clerk — only came to light after an Edge reporter’s recent inquiries.
And so we come to the core problem with Disclosure of Appearance of Conflict of Interest filings: Under Massachusetts ethics laws, once the form is filed with a town clerk, there’s no requirement for any other public disclosure — by the filer or the town clerk. Indeed, in Great Barrington, according to Town Clerk Jennifer Messina, these forms are simply time-and-date stamped, placed into a black binder labeled “Conflict of Interest,” and, per state requirements, the binder kept in her large, fireproof office safe.
It’s hard not to immediately think of the final scene of “Raiders of the Lost Ark,” when a warehouse worker rolls the Ark of the Covenant deep into an enormous warehouse where it presumably is never seen again.
So how do the voters of Great Barrington, or fellow town board members, know that a conflict may exist and have an opportunity to review or discuss the details? Unless they hang out in the town clerk’s office, perhaps sipping coffee and chatting with the amiable, helpful staff, they won’t. Yes, the binder and its contents are available for public inspection at any time. But you’d first need to know to look. Or maybe you could make town hall a regular stop while out for your daily constitutional?
Curious about “the binder,” on Tuesday I visited the town clerk’s office and reviewed more than 100 of these filings going back to April 1993, filed by selectboard members past and present, town moderators, planning board members (many filed by longtime-and-current member Jonathan Hankin, a local real-estate agent whose first appearance-of-conflict filing was in 2004), and others. The binder also includes filings by municipal employees regarding financial conflicts and recusals. Some are typed, a few have cover letters attached, and a great many are written with such poor handwriting as to be almost unreadable. This can’t be done via a simple, fillable website form?
Current selectboard member Eric Gabriel — who recused himself from the STR debate as he is a long-term-rental owner — has filed several appearance-of-conflict forms regarding his work as an electrician. Garfield Reed filed one regarding his connection to former co-workers who might bid on a town-owned property at 40 Grove Street. And Leigh Davis filed one last November addressing her paid work for a local housing organization while advancing her STR proposal.
Abrahams has filed 12 of these disclosures since 2014, connected to things like his role hosting a show on WSBS (which has applied for various town permits); his volunteer work on the Clinton Church restoration and proposals it made to the selectboard for Community Preservation Act funds; his paid work writing grant applications for the Berkshire Hills Regional School District; and his role on the Cemetery Commission.
Abrahams’ filings are mostly trivial, very detailed, and demonstrate a clear commitment to following the letter of the law. For instance, his long and active involvement with the Friends of Great Barrington Libraries (DISCLOSURE: Abrahams and I are friendly acquaintances and share a well-known love of our local libraries) means that every time the Friends host a movie screening or other event at Mason or Ramsdell libraries — for which the selectboard must approve a permit to serve alcohol — he filed a form, noting that he’s on the selectboard, is or was president of the Friends organization, and often works as an unpaid “bartender” at these events. (DISCLOSURE: I’ve attended many of these events. FURTHER DISCLOSURE: I never had any complaints about his pours; my small plastic cup was always amply filled and occasionally even refilled.)
Taken together, his filings document someone who is active in his community, serving on boards and committees where he is largely uncompensated (though selectboard members are currently paid $4,700 per year and may get health insurance through the town), and who has properly complied with ethics-law requirements for even the smallest potential conflict. Though you may disagree with his views on any number of local issues, including limiting short-term rentals, there’s little doubt that he is deeply engaged in the life and well-being of Great Barrington.
That so many of these filings are banal and seemingly unnecessary highlights the qualitative difference, and the problem, with his filing regarding his fiancée’s STR — and the clear need for additional, timely public disclosure. This is a substantive issue that may significantly impact the finances of his partner and many others in Great Barrington. Beyond the definition of a family member, and the filing of a form that he must have known would almost certainly never be seen, a reasonable person might well consider this a conflict requiring recusal.
In the many extended and sometimes heated selectboard discussions since last fall — indeed, as early as a separate subcommittee on housing meeting six weeks before he filed his disclosure — Abrahams has challenged the idea that limiting STRs would address affordability or the rental-housing shortage in Great Barrington, suggested it would undermine the ability of local retirees to fund their retirement by renting their homes, and frequently questioned the idea of limiting STRs to a primary residence — a change that would have a direct impact on his fiancée’s rental income. He has also argued extensively that STRs benefit the tourist economy, bringing people to the area to shop, eat, and contribute to the local economy in myriad ways.
Abrahams certainly followed the letter of the ethics law, which is fine as far as it goes. But if he felt confident that he could be impartial — to the point of filing a form that he almost certainly knew would go no further than a black binder hidden away in a vault — why not be more upfront and timelier by making the same disclosure last fall in an open forum like a selectboard meeting? His arguments opposing significant STR restrictions may have merit, but the idea that he has no significant conflict strains credulity.
Beyond the STR debate, this matter raises an important question: What’s the point of Disclosure of Appearance of Conflict of Interest filings if they are not immediately, and by statute or local policy, made public in a way that’s useful to the community?
To address this problem, town boards in Great Barrington and across our region could require that any Appearance-of-Conflict filing made under state ethics law be listed as an agenda item at the next meeting after the form is filed with the town clerk and a copy included in that meeting minutes. The filings could also be immediately posted to town websites.
According to the Massachusetts State Ethics Commission, there’s nothing in state law that prevents municipalities from having additional ethics or disclosure requirements; they simply can’t have rules that are less stringent than state law.
Indeed, the city of Worcester last month published a simple webpage where residents can find digital copies of 13 years of Disclosure of Appearance of Conflict of Interest forms filed by elected officials and city employees following a public-records request from Worcester Patch.com. Previously, as has been the case in Great Barrington, these forms were filed with the city clerk and largely invisible to the community.
When I spoke to him this week, Abrahams said it “didn’t occur to him” to make any other public disclosure after he filed the required form and confirmed with the state ethics commission that his fiancée did not qualify as immediate family. But he said he’s on board with additional disclosure requirements.
When asked if he’d support the creation of an online database like Worcester’s, available on the town website, as well as including completed disclosure forms with a town board’s next meeting packet after they’re filed, he said he would — and went further. “I’d support a Town requirement that you say it out loud [in a meeting], and I wish they’d had [that requirement],” Abrahams said. Because these documents are already public, he said, it’s likely that no bylaw or policy change would be required to post them online.
“One of the things I love about Massachusetts is that everything is out in the open,” he told me.
Interestingly, the Worcester Patch.com request was also spurred by a housing-related debate. The city was considering an eviction moratorium, and an at-large city councilor is a rental-property owner and a speaker for MassLandlords had filed an Appearance-of-Conflict form. The intersection of real estate and local governance can be fraught; indeed, several members of town planning and select boards across our region are, notably, in the real-estate business, and their financial interests and potential conflicts could and should be more fully and transparently disclosed.
Questions about conflicts of interest and compliance with state ethics laws can be complicated. There are indeed gray areas. But as this matter makes clear, the solution is to require as much public, timely disclosure as needed to ensure voters can truly decide for themselves if elected officials are acting impartially and in the best interests of their constituents and communities. More transparency will remove doubt and serve the interests of constituents and officeholders alike.
Bill Shein would like to disclose that a binder full of Disclosure of Appearance of Conflict of Interest forms is not something he recommends as beach reading.