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Tuesday, April 10, 2012

Parsing a recusal

Revenge or Recusal?
by Tom Ferrio

Your reporter was confused by part of Lisa DiBello's speech at the beginning of Monday's Town Council Executive Session and so spent some time researching the background.

Here is a report.

In the April TC Executive Session, Lisa DiBello announced her temporary recusal (self-removal) from participating in discussion and voting on a possible personnel action (like firing) against Town Administrator Bill DiLibero for a list of charges brought primarily by the CCA-aligned members of the Council and the CCA. Will has been giving his analysis of those statements at length here (see the 6 parts of the Kill Bill series of articles).

DiBello announced her recusal pending a decision from the State Ethics Commission on whether her participation could be charged as a conflict of interest. In an interesting development, the scheduled action ended up being continued until a future meeting when, presumably, DiBello will have her response from the Ethics Commission.

Though I had a video camera at the ready (because the Executive Session introductions and conclusions are not caught on ClerkBase), I was caught by surprise by her comments at the beginning and missed a few seconds. Here is what I caught:

... At that meeting the Town Administrator was represented by a private attorney who, at the time, raised an objection to my participating in the Town Administrator's evaluation. As the minutes reflect, I chose to recuse myself from discussions that evening though, at the time, I believed I had every right to participate. I did so out of an abundance of caution so the matter could proceed. 

... Although I am still very confident that I have a legal right to participate in this matter, I have requested a ruling from the State Ethics Commission to determine, with certainty, my ability to participate.

I at first thought that DiBello was referring to the session on February 13 where DiLibero was reprimanded for permitting Jay Primiano to send out an email about proposed sports lighting in Ninigret Park. Since DiLibero requested that the discussion be done in public, the minutes are available on ClerkBase. They show DiBello participating in the discussion and the vote.

Motion made by Mr. Slattery and seconded by Ms. DiBello that the draft reprimand be placed in the Town Administrator’s file as finalized by the Town Solicitor.
ROLL CALL: Mr. Avedisian-No; Ms. DiBello-Yes; Mrs. Frank-No; Mr. Slattery-Yes; Mr. Gentz-Yes

Later, I realized that DiBello was probably not talking about that meeting but, rather, DiLibero's performance evaluation that took place on August 3, 2011. That was also done in public, so minutes of the meeting are available. Here are some excerpts:

(Mr. Gentz) asked Ms. DiBello if she had any type of communication with the Ethics Commission as to whether she felt she could sit in on the Town Administrator’s evaluation. Ms. DiBello stated that she has not communicated with the Ethics Commission regarding this matter, but her personal attorney advised her that she could participate, and if at anytime discussion regarding her situation versus the Town should come up, she should recuse herself. ... Mr. Gentz stated that he had a concern that Ms. DiBello has an active suit against the Town Administrator and yet she feels that she can sit objectively on his evaluation. Ms. DiBello stated that she was Councilor DiBello, not individual Lisa DiBello and that any observations that she may or may not make would be based on her capacity as a Town Councilor. She stated that she had been advised by her attorney that she has every right to participate if she so chose. She stated that she has chosen to sit in; she stated that she wasn’t sure if she would be speaking or voting on any topics, she would be playing that by ear. Mr. Avedisian asked Ms. DiBello what her objection was to asking the Ethics Commission for an advisory as to whether she could or could not participate in this evaluation; he felt it would be better to err on the side of caution. Ms. DiBello stated that she had no objection; ... Ms. DiBello stated that she did not believe she had a conflict, but if the Council would like her to seek an opinion from the Ethics Commission, she would be more than happy to do so.
Mr. DiLibero stated that he felt it would be difficult for Ms. DiBello to split herself as an individual and as a representative of the Town and see things differently, and that he would like to see some kind of opinion on whether there’s some kind of conflict or not, but he would like to go forward with his review tonight. Ms. DiBello stated that she would be speaking as a Town Councilor and that she can clearly distinguish between her role as a Town Councilor and her role as an individual citizen involved in a lawsuit against the Town. She stated that she would be happy to seek an opinion from her Attorney as to whether or not he wants her to seek an advisory opinion from the Ethics Commission.
Mr. DiLibero read the following statement: 
I have indicated my concern that Councilor DiBello participate in my review due to the fact there is presently pending a complaint in the Human Rights Commission initiated by Councilor DiBello.
My understanding is that when a potential conflict of interest is presented, the State Ethics Commission requires that a writing reflect the Councilor’s position as to the conflict either agreeing that there is a conflict and recusing herself or in the alternative that she does not believe there is a conflict and that she can fairly participate in her role as Town Councilor despite her pending suit against me. The Ethics Commission requests an explanation as to why she feels she can be fair and that no conflict exists.
I would simply ask that Councilor DiBello address this on the record and submit the requested forms. I am prepared to go forth today with my review in open session.
Ms. DiBello stated that she would complete the Ethics recusal form and that she would recuse herself from this matter. She read the completed recusal form into the record:
I, Lisa A. DiBello, a member of the Town of Charlestown Town Council hereby under oath deposes and says:
1. A matter involving the review of the Town Administrator is presently before the Town Council.
2. I have the following interest in the matter noted above:
I don’t believe I have a conflict but I will recuse myself out of an abundance of caution and so that this matter can proceed.
3a. In compliance with Section 36-14-6(2)(b), I hereby recuse from participating in the discussion of or voting on said matter.


Ms. DiBello perhaps has a different way seeing this but these are my observations:

  1. She was fully intending to participate in DiLibero's August 2011 performance review and only decided on "an abundance of caution" after her participation was questioned repeatedly.
  2. She did openly participate in the February 2012 reprimand of DiLibero for giving his permission to Jay Primiano to send out an email (on a Parks and Recreation matter where DiBello was the former Director). She even seconded the motion to reprimand him in addition to voting for it.
  3. While now belatedly submitting a request to the Ethics Commission for a ruling, DiBello still claims no question in her mind about her legal ability to participate in matters that may lead to firing DiLibero.
I guess I can understand her state of mind. But I simply don't see how she can expect to participate in such discussion and votes without expecting the public to view it as an abuse of power ... and simple revenge.