New rules governing use in Scarborough overthrown after
improper vote
SCARBOROUGH — Within 24 hours late last week, Scarborough did
two 180-degree turns on an updated pesticide-use policy, ending up exactly
where it started – with the exception that one town councilor now faces a
censure hearing regarding conflict-of-interest charges.
When the Town Council appeared to overturn its
nascent pest control policy April 18 with one less restrictive of chemical use,
Councilor Karen D’Andrea had her protests gaveled out of order. In response,
she declared with a flourish of the arm, “You’re all out of order.” She then
grabbed her jacket and left the meeting before it was over, telling a group of
37 residents gathered for the decision, “Sorry, folks. I tried my best.”
But within 24 hours, Town Manager Tom Hall
circulated an email advising that the decision had not carried after all,
despite a 3-0 vote. Scarborough’s Town Council Policy Manual requires four
affirmative votes to pass any measure, he said. That was impossible thanks to
the absence of Council Chairman Ron Ahlquist, the decision of Councilor Richard
Sullivan to recuse himself because of conflict-of-interest charges, and
abstentions by D’Andrea and Councilor Carol Rancourt.
Councilors James Benedict, Jessica Holbrook and
Judith Roy all endorsed the update,
which had been sponsored by Sullivan and is less demanding of organic
pesticide use than the earlier version, written by D’Andrea and adopted in
September by a 4-1 vote, with only Sullivan objecting.
“I have to view the existing policy to be still in effect and will act
accordingly unless directed otherwise,” said Hall, on Friday.
That resets the status quo on the use of chemicals to fight grubs and
other insect infestations in Scarborough – i.e., don’t – but leaves
Sullivan subject to censure proceedings for suggesting a
different path.
In separate letters submitted by D’Andrea and
Rancourt, Sullivan was accused of failing to disclose that his brother, Dan
Sullivan, holds a $40,000 contract with the town to mow lawns at Scarborough’s
public library and three elementary schools.
The council policy manual calls on each
councilor to file with the town clerk by April 1 the name of any person holding
a town contract worth more than $1,000 from whom the councilor “or a member of
his/her immediate family” received $1,000 or more during the preceding year.
Sullivan volunteered to recuse himself from the
vote, subsequently winning a 3-2 decision – with D’Andrea and Rancourt opposed
– that allowed him to take part in debate. However, the fate of Sullivan’s
policy proposal has no bearing on disciplinary action leveled against him.
Although not yet scheduled, a censure hearing will be held, said Hall.
“There’s no pulling back,” he said. “An ethics
charge is a very serious thing. They made those allegations and it has been my
advice to the council chair that they [the full council] should convene as a
body, deliberate, and make a ruling.”
ORGANIC
POLICY
The drive to ban synthetic pesticides in Scarborough
began several years ago with local businessman and philanthropist Eddie Woodin.
A lifelong birder, Woodin questioned if chemical pesticides could travel from
weeds to worms to birds, much like the infamous, but once widely used
insecticide, DDT. Woodin has more recently raised the specter of upwind turf
chemicals being behind unexplained illnesses at Wentworth Intermediate School,
rather than the aging building itself, as commonly supposed. In 2010, Marla
Zando, then executive director of the Scarborough Land Trust, sounded a similar
note of concern for children, citing reports that appear to link certain
synthetic pesticides to an array of childhood cancers, as well as attention
deficit hyperactivity disorder.
That prompted D’Andrea to draft an ordinance banning the
use of synthetic pesticides, which, after a year of debate and the formation of
Citizens for a Green Scarborough, eventually saw life in diluted form as a
council policy, applicable only to town-owned lands.
Still, it specifically banned the use of
synthetic pesticides without a waiver issued by a newly created pest control
advisory committee or an “emergency” application approved by the town manager.
That was seen as a win by members of Citizens for a Green
Scarborough like Mark Follansbee, who has a doctorate
in pharmacology from Penn State. As a 15-year contracted toxicologist for the
Environmental Protection Agency, Follansbee was concerned that, prior to policy adoption, no
apparent preference was given to the use of organic pesticides in public parks
and athletic fields.
“During one Ordinance
Committee workshop, Community Services was kind enough to give us an accounting
of products used in 2010,” recalled Follansbee on Friday. “The information
provided showed that only synthetic herbicides were being applied. No
less-toxic approaches were apparently even attempted.”
Follansbee was first to
sign up for the seven-member advisory group created in the new policy. However,
in addition to relaxing restrictions on synthetic pesticides, Sullivan’s policy
also knocked the committee from seven to five members, specifically targeting
posts for which Follansbee and Zando had been nominated.
“They are out of control – absolutely against any kind of
synthetic pesticides,” Sullivan explained in an interview before Wednesday’s
debate.
INTEGRATED
POLICY
A career landscaper when not fighting fires for
the city of Portland, Sullivan first tried n March to present an “integrated
policy” – one that encourages but does not absolutely require the use of
organic pesticides.
Sullivan’s first draft, based
on “best management practices” adopted by the Maine Board of Pesticide Control
in February, was pulled at the last minute from the March 21 agenda when
questioned by Elizabeth Peoples, an attorney for the citizens group and a
Scarborough resident.
Among other issues, Peoples argued that by voting against
D’Andrea’s organics-only policy in September, Sullivan was prevented from
presenting any alternative for at least one year.
In an April 18 memo, Town Attorney Joel Messer of
Bernstein Shur said rules on reconsideration apply only to the first meeting
immediately following a decision. The one-year limit applies only to citizen
petitions seeking to repeal an ordinance vote, he said.
Once the question of standing was sorted out, Sullivan tried
again, albeit with a few changes. His initial proposal, for example, had
completely exorcised the citizens advisory committee. Sullivan also took time
to incorporate a matrix from the state plan that separates soils into four
classes, advising the type of pesticide treatment best suited to each under
certain circumstances.
Elisa Boxer-Cook, a member of the green group, chided the
council by saying, "You can't go half way on organics – it's all or
nothing.” But Sullivan countered that it takes both time and money to prep
soils for organic treatments.
That transition can be expensive, he said, and cost
taxpayers more than an approach that tries to prevent infestations, rather than
fighting them.
VIOLATIONS
OF POLICY
Sullivan was not the only person accused of
trying to overturn the organics-only policy. D’Andrea also suggested Hall may
be culpable.
“It is perhaps another violation of our rules
when the town manager is directed to implement a policy and does not do so,”
she said, referring to the seven-month lag between creation of the pesticide
advisory committee and presentation Wednesday of a slate of appointees.
Hall said Friday there simply weren’t any
applicants until word circulated of Sullivan’s initial plan to eliminate the
committee, other than Follansbee and Zando, and they were invited to comment on
bid specs for this year’s turf work. However, Hall did admit the openings “were
not well advertised,” adding that “as early as March,” when he learned of
Sullivan’s proposal, he slacked off on filling a committee that might cease to
exist.
Still, Hall said, no pesticide of any kind has
been applied to public property in Scarborough since September, other than one
“emergency” grub treatment in the days after the new policy passed. Therefore,
there was nothing for the advisory committee to advise on.
But Peoples said Citizens for a Green
Scarborough members were being discouraged as early as January.
“We were told by [Community Services Director]
Bruce Gulifer not to worry about it, that the policy probably would never be
implemented,” she said, following Wednesday’s meeting.
Hall said that after Sullivan’s first attempt to
alter the pest policy was pulled in March, the citizens group was invited to a
work session to craft a compromise policy.
“They’re the ones who refused to work with us,”
agreed Sullivan.
But Peoples said there was a good reason for
that.
“Tom Hall requested that it be a private meeting
and we thought that was a violation,” she explained, saying only councilors
Ahlquist and Sullivan would have participated, to keep from triggering public
meeting laws. “He wanted it kept quiet and we thought it should be a public
process, just like the first policy went through for more than a year.”
Despite clamoring about conflicts of interest,
which Sullivan called “showboating” to derail his proposal, most of the dozen
speakers at the meeting last Wednesday seemed most concerned with an apparent
rush to judgement. In fact, more than one person, including D’Andrea and
Rancourt, said the two policies share more in common than not.
Even Follansbee, in comments Friday,
acknowledged that the best management practices at the core of Sullivan’s approach
“are outstanding.” The only concern, he said, is that the new policy would have
“turned back the clock” to a time when Scarborough supported organic treatments
in principle, but not practice.
“I am mostly disappointed that the opinion and
will of one individual is being put ahead of the will of the citizens,
disappointed that a quick and closed approach is being used to circumvent
policy that was established after a year-long, inclusive process,” he said.
“I am very well aware of the policies and procedures
of the Town Council,” agreed former two-term councilor Sue Foley-Ferguson.
“They are put there so that there is a public process – not just for one
individual who is concerned about a policy that they didn’t win the vote on.”
“We sat on this policy for six months and not
one person had a complaint,” said D’Andrea. “Then, all of a sudden, boom, one
day there’s a new policy. We get to vote on it once. There’s no time for public
process. There’s no workshop. There’s no explanation. All we hear is, ‘It’s a
new common-sense approach.’ That’s baloney. It reeks of horse hockey.”
“Well, that’s quite enough of the superlatives
at this time,” said Roy, acting as chairwoman in Ahlquists’ absence, as she
called for the vote.
In his email about Wednesday’s vote, Hall
pointed out that abstentions by D’Andrea and Rancourt were improper under the
policy manual. Outside of a “real or perceived conflict of interest,” the rules
say, “every member of the council present must vote” on every issue.
“Nobody can force me to vote on something that I
consider [to be] an illegal action,” said Rancourt in a telephone interview on
Friday.
Still, neither woman faces disciplinary action
at this time. Instead, it is Sullivan who is on the hot seat and predicting he
will be “completely vindicated.”
Sullivan said after the meeting last Wednesday
that he would decide after consulting with his attorney if he wants his hearing
held in public or in executive session.
Sullivan argued he has no conflict of interest
because he makes no money from his brother’s business, and because his brother
only mows lawns. His proposals would not have impacted his brother’s contract
with the town at all, said Sullivan, adding that he had not registered the
relationship in the clerk’s office because he interpreted the rule to mean he
had to benefit personally from the business to warrant giving notice. Also, he
pointed out, Gulifer only presented a bottom-line dollar figure when bringing
lawn care contracts to the council.
“We barely talk to each other,” Sullivan said of
his brother. “He could have lost that contract for all I’d have known.”
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