A Conflict by Any Other Name…
By Jim Conley • February 28th, 2007 • Email This Post to a Friend •
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Tomorrow evening’s Zoning Board of Appeals meeting on the Longyear development will likely find Board member Enid Starr weighing in on the standing of abutters and on other matters.
Who is Enid Starr? Well, she is mother to a law partner of Jeffrey P. Allen, the Longyear developer’s lawyer. In September of 2005 the Brookline Selectmen (see meeting minutes) issued a “blanket waiver” releasing Ms. Starr from having to disclose her relationship to Mr. Allen when he appears before her Board…which is quite often.
This is nuts. A blanket waiver? Did it ever occur to the Selectmen that they ought to find people to serve on these boards that aren’t quite so conflicted?
Just last night, Brookline Planning Board member Linda Hamlin disclosed that she has a financial relationship with Jeffrey Allen inasmuch that he performed legal work on her behalf. But if Allen’s not appearing at the ZBA, he’s before the Planning Board.
And in the case of Hamlin, the ethical issue is not whether she can hear matters brought by Allen (she can’t) but why she chose to enter into a financial relationship with an attorney whose financial fortunes appear to be tied to his effectiveness with her Board. Did she pay the going rate? Has she received a “courtesy discount”, as did the Town when Allen provided something resembling legal services to the DPW commissioner last December?
Well, we’ll have to find out.
Update: Archie raises som damn good questions in the comments. Click on the blue “Comments” link below to read.
Jim Conley is publisher of On Brookline.
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Enid Starr has been a member of the MA bar since 1967 and Sherman since 1981, according to the current Lawyers Diary. I don’t know when Sherman and Jeffrey Allen joined their current law firm. But why would Ms. Starr want to expose herself and her son to criticism because of any potential or actual conflict of interest? Our Town has over 450 attorneys residing/practising here. There are plenty of attorneys on the ZBA, perhaps too many. Does Ms. Starr think that this passes the smell test? The blanket waiver does not cover the odor. This is not a situation of a national law firm with a thousand attorneys with her son as a minor player. Might clients represented by Mr. Allen think he provides them with an edge because Ms. Starr’s son is a member of the firm? Is the purpose of the blanket waiver to benefit our Town or Ms. Starr or her son’s firm? Is Ms. Starr indispensable to the ZBA? I think not.
The 2005 MA Lawyers Diary lists Sherman Starr as “Of Counsel” to the Boston law firm of Looney & Grossman. The 2006 MA Lawyers Diary lists his assocation with the Wellesley law firm of Seegal, Lipshutz & Wilchins; Jeffrey Allen is a partner/shareholder with the latter firm. Sherman may have joined Allen’s firm as early as the Fall of 2004 or sometime during 2005. Presumably at the time Sherman was considering and being considered to join Allen’s firm there was some awareness that his mother served on the Brookline ZBA. Perhaps he would not have joined or been permitted to join the firm if that would create some conflict with Allen’s practice before the ZBA. This may have given rise to the request for a blanket exemption for Ms. Starr. Of course, Ms. Starr could have resigned from the ZBA. She well may have served on the ZBA panel that had granted Longyear’s zoning relief before this situation arose. But she still had the option to resign. What is not apparent from any public record that I am aware of are the circumstances that led Sherman to Allen’s firm, e.g. was he recruited for some speciall legal skills he had developed with Looney & Grossman over the years? What if indeed Ms. Starr had resigned from the ZBA? Would Sherman have joined Allen’s firm? The blanket waiver sends out mixed smoke signals. While the blanket waiver may address certain state conflicts rules it may not resolve issues of the Code of Professional Responsibility under the jurisdiction of the Board of Bar Overseers. What is further disturbing is that in granting the blanket waiver, at least four of the granting Selectmen themselves were attorneys. Didn’t any of them consider the smell test? Perhaps there is a need for some kind of detector in the Selectmen’s Hearing Room.
The ZBA’s underlying decision in Longyear issued before the ZBA adopted rules and regulations (as long required by Chapter 40A) that limit counsel for a party (read, the developer’s attorney) drafting the decision for consideration by the ZBA panel. It is possible that Jeffrey Allen, on behalf of the developer of Longyear, submitted a draft decision to the Chair of the ZBA panel, who in turn may have provided the draft to the other two ZBA panel members. If this was the case, the question arises as to what if any changes were made to the draft? Also, were these changes discussed solely between the ZBA panel members or might Allen have joined in the discussions? Also, were these discussions undertaken at a lawful public meeting or hearing, or via Email or telephone or fax? After all, there were other parties in interest and shouldn’t they have had the opportunity to participate in reviewing the draft and discussing any changes? Shouldn’t ZBA panel members be required to include with the public records for the Longyear file any such discussions between its members and with Allen? Keep in mind that after the hearing was closed, no new evidence could be offered without complying with notice and other Open Meeting Law requirements.
What advantage does the developer obtain if his/her counsel drafts the ZBA panel’s decision? It is possible that no substantive changes were made to the draft in this case, which would suggest that the ZBA panel members had no problems with it. Perhaps the answer lies with events concerning Longyear before the ZBA panel since its underlying decision. The ZBA panel members could (and should) shine a little light on this, as the Open Meeting Law and the public records law has not provided enough: Did Allen prepare a draft decision in this case? Were there “ex parte” contacts between the ZBA panel and Allen concerning its decision?
[...] Imagine if you will a place where a motion to deny an enforcement action on an alleged zoning by-law violation is made by an appeals board member - Brookline’s Enid Starr - who also happens to be the mother to an attorney who is law partners with the attorney representing the developer against whom the charges have been made. (see previous post) [...]
Maybe if Dennis DeWitt had kicked money up to Bobby Allen, as did Linda Hamlin, he would still be a voting member of the Preservation Committee.