Martha's Vineyard Commissioners advised to avoid roundabout talk
File photo by Ralph Stewart
Martha's Vineyard Commission (MVC) executive director Mark London emailed a gag order to elected and appointed commission members on October 25, advising them not to discuss or even read about the Oak Bluffs roundabout project before the MVC's meeting next week.
One commission member, a Chilmarker and the hearing officer for the MVC's roundabout hearings, described the email as "appropriate."
Another, also from Chilmark and a roundabout critic who will ask the commission members to reverse their vote in favor of the Blinker intersection roundabout, called it "meddling."
[A copy of Mr. London's email appears below.]
In conversations early this week with a reporter, Mr. London said there is precedent for his email warning. He said he wanted to remind the members of their responsibility. He said he was looking for documents — adopted bylaws, memos from MVC lawyers, previous emails from him or another commission member, training manuals for new commission members — that formed the basis for his October 25 advice, but he had not yet found such a document.
Yesterday, November 2, Mr. London defended his communication with commission members, in an email response to questions from The Times, by describing changes in the Massachusetts Open Meeting Law outlined to commissioners by counsel.
"The restrictions on commissioners communicating with each other outside of a public meeting derive from the Massachusetts Open Meeting Law," Mr. London said. "All Commissioners have received a manual about this, and Ron Rappaport gave a presentation to the Commission about this when the Commonwealth made some changes to the Law."
A request for reconsideration
At the MVC's October 20 meeting, commissioner Leonard Jason Jr. announced he would make a motion to rescind the MVC's October 6 vote to approve the project at the next meeting on November 3.
Mr. London's email to the commissioners said that since there may be a vote to rescind the roundabout decision, the issue is still pending and they should follow all of the ordinary procedures for public hearings and public meetings on pending applications.
Mr. London wrote that commissioners should not discuss the Oak Bluffs roundabout project with each other or anyone else, participate in public meetings about it other than commission meetings, or read additional materials about it, including commentary in local newspapers.
On Monday, in a telephone conversation with The Times, he said that when the MVC reviews a development of regional impact, it operates in a quasi-judicial, adjudicatory capacity, somewhat similar to a jury or a judge. Doing so, the MVC must follow due process requirements, which include a restriction on communications considered "ex parte," a Latin legal term that means by or for one party.
Mr. London said his email was intended to remind the commissioners they are supposed to make their decision on the project based on the oral and written testimony on record from the public hearing.
"You don't expect members of a jury outside the jury process to be talking to people in the grocery store, to be talking to their selectmen, to be reading the National Enquirer reports, or watching a television show, or reading an editorial that someone thinks the jury should find them guilty or innocent or whatever," he said.
In Mr. London's email to The Times yesterday, he explained the basis for his directive.
"The restrictions on ex-parte communications during an adjudicatory process apply to all quasi-judicial boards, including planning boards, zoning boards of appeal, and the MVC when it is reviewing a DRI application," he wrote. "This derives from the due process requirement in the U.S. Constitution. New commissioners are informed about this during commissioners' orientation."
The Times asked Mr. London whether the commissioners have a written document that includes an explanation of the prohibition on ex-parte communication. "From time to time, I have made passing reminders to commissioners about these issues," he wrote in answer to The Times.
"The email I sent to commissioners last week was more extensive because of the unusual situation of the motion to rescind a vote on a DRI decision," he said. "The reason for sending it is that a matter that appeared to have been settled was no longer settled, so I was reminding commissioners that the normal concerns that apply when the commission is acting in a quasi-judicial capacity continued to apply in this situation."
Helpful or meddlesome?
Mr. London's email got mixed reactions from some of the commissioners.
"It was an appropriate reminder," commissioner Doug Sederholm of Chilmark said of Mr. London's email in a phone conversation last Friday.
Mr. Sederholm, who ran the roundabout public hearing as the land-use planning committee chairman, said he could not recall a project that generated quite so much controversy in his almost nine years as a commissioner.
While people were generally united in their opposition to other controversial projects in the past, Mr. Sederholm said, "This is one where if people hold an opinion, on either side, it's a strong one. It's great people are passionate, but in any political discourse, you have to filter out the static and you have to filter out the repeat messages."
Mr. Sederholm, a practicing attorney, also characterized the commissioners' roles as similar to that of jurors, in that they gather evidence at a public hearing and deliberate based on that evidence in order to make a decision. However, he pointed out, unlike jurors whose role may be unknown outside the courtroom, commissioners may get an earful from the public wherever they go.
"On the Island you could go into the Stop and Shop and be stopped 13 times before you get to the checkout," he said. "You might hear from 12 people that are in favor of the roundabout and one who is against it, or vice versa, and they all make convincing arguments. We are not supposed to base our decisions on public opinion, but on facts and what we believe is based on the best interests of the Island. I think that is all Mark meant."
Mr. Jason, a veteran commissioner who currently serves as the Dukes County appointee, took offense at the reminder.
"I don't know why he's meddling," he said of Mr. London. "I think we're all adults. I don't think we need somebody reminding us. It might help him to look in the mirror."
Mr. Jason said his first thought was that he should ask Mr. London where the ex parte communications directive came from and request a copy of the document.
Although he recalled a handbook for commissioners he received some time ago, Mr. Jason said, "Not talking to the press and not talking to public, I don't remember that. And I think I would have remembered that."
Mr. Jason questioned why Mr. London would tell the commissioners they could not discuss the roundabout since a decision has already been made.
"It's an adjudicatory proceeding, but once it's done, it's done," he said. "Mr. London can say technically it's not done, but at the last meeting when I raised that issue, the chairman ruled that's it's done. You can't have it both ways."
The MVC reviewed the roundabout project by the town of Oak Bluffs and Massachusetts Department of Transportation as a development of regional impact (DRI) after referral by the West Tisbury selectmen.
The roundabout is proposed for the intersection at Edgartown-Vineyard Haven, Barnes, and Airport roads, which presently uses a four-way stop system and flashing red lights on all approaches.
The $1.4 million project will involve constructing a single-lane roundabout at the intersection, with pavement reconstruction, sidewalks, drainage, landscaping, and other improvements.
The MVC approved the project 7-6 with conditions for bus stops, landscaping, exterior lighting, and a shared-use path (SUP). MVC chairman Chris Murphy cast the tie-breaking vote in the decision.
Mark London, the professional director of the Martha's Vineyard Commission (MVC), sent this email on October 25, to commission members and MVC staff:
"Since there may be a motion to rescind the decision on the Oak Bluffs Roundabout on November 3, the issue is still pending before the commission. Therefore, commissioners should follow all of the ordinary procedures for public hearings and public meetings on pending applications. Ex-parte communications regarding this issue are still prohibited.
"Commissioners should not discuss the issue with each other or with anyone else. The only discussion that may take place is in the presence of other commissioners with proper notice to the parties and the public and opportunity for all commissioners to participate in the communication. This includes your participation in public meetings other than commission meetings.
"If you are approached by a member of the public or an elected official, you should politely but firmly refuse to engage in conversation about the matter. You can tell them that the hearing is now closed and it is too late to submit additional information or opinions; should the hearing be reopened, the public will be given notice and people can submit additional materials at that time.
"Also, you should avoid reading additional materials about this issue, including commentary in local newspapers."