The St. Michaels commission president’s votes on the location for a new town office were not a conflict of interest, the town’s ethics panel has unanimously ruled.

In its April 8 decision, the St. Michaels Ethics Commission also chastised the St. Michaels Action Committee LLC (SMAC), which had filed the ethics complaint against William E. Boos.

“In closing and in the best interest of the Town of St. Michaels, we are compelled to observe that the gravamen (essence) of the complaint was evidently more about influencing a Town policy outcome than a public ethics transgression under the Ethics Ordinance,” the ethics commission wrote.

In its findings of fact, the ethics commission said SMAC members David Breimhurst and Doug Rollow testified that SMAC, in an Oct. 3, 2019, settlement proposal Rollow emailed to Boos, SMAC offered to suspend the circuit court proceeding if Boos would change his vote on the skateboard park feasibility study.

SMAC, in its settlement proposal, also agreed to end the circuit court proceeding, regardless of the outcome of the feasibility study, if the study was commensurate with a 2017 study on the Boundary Lane Property and completed in a timely fashion.

“According to the testimony of Mr. Breimhurst, in its settlement proposal, SMAC was not looking for impartiality from Boos; its objective was for him to vote the way SMAC wanted him to vote,” the ethics commission wrote.

Complaint

In its complaint, SMAC said Boos violated his duty “to recuse himself from actions in which his judgment has been impaired as a result of his employment relationship with Curtis Stokes & Associates, and the [boat brokerage) relationship between Curtis Stokes & Associates and the Chesapeake Bay Maritime Museum.”

SMAC said that Boos’ votes on October 17, 2018, November 14, 2018, and February 13, 2019, concerning properties owned by the town on Fremont Street and at 301 Mill Street “impermissibly furthered the interests of the Chesapeake Bay Maritime Museum,” which has expressed a strong interest in purchasing 301 Mill  Street, and that Boos’ “impartiality or independence of judgment is impaired” with respect to the museum.

Procedural history

The ethics commission said SMAC filed its ethics complaint on April 10, 2019. On April 25, 2019, the commission deliberated on the complaint without a hearing and voted unanimously to dismiss the complaint.

On May 31, 2019, SMAC filed a petition for judicial review in Talbot County Circuit Court. On  January 2, 2020, a judge sent the complaint back to the ethics commission and ordered it “to hold a hearing, place witnesses under oath, record the proceedings, permit the presentation of evidence by all interested persons and to allow for reasonable cross examination of witnesses.”

The commission held a public hearing on February 25, 2020, with its three members — Chairman Sidney Davenport-Trond, Peter Hartjens, and John E. Hunnicutt — in attendance. SMAC offered three witnesses — Boos, and David Breimhurst and Doug Rollow of SMAC; Boos offered two witnesses — Curtis Stokes, principal of Curtis Stokes Associates, and Kristen Greenaway, president of the Chesapeake Bay Maritime Museum.

On April 1, 6, and 8, 2020, the ethics commission met by conference call (due to the COVID-19 pandemic) to deliberate its findings of fact and conclusions of law.

The panel unanimously concluded that none of the votes or actions taken by Commissioner Boos that have been raised by SMAC created an impermissible conflict of interest under the town’s public ethics ordinance.

Ethics Commission’s Findings of Fact

Boos was sworn in as a town commissioner in June 2016 and became president on June 14, 2017. Around the time of his June 2016 election, Boos sold his local boat brokerage business to Curtis Stokes & Associates (“CSA”), after which he became an independent contractor for CSA.

As an independent contractor, Boos was “paid commissions on a transaction-by-transaction basis for services he rendered to CSA either by directly brokering the sale of boats or by assisting other independent contractors of CSA by handling the paperwork associated with those brokers’ sales in particular boat brokerage transactions….,” the ethics commission found. “(F)or our purposes the import of the independent contractor relationship between Commissioner Boos and CSA is that it exists on a boat brokerage transaction-by-transaction basis which lends itself to enabling Commissioner Boos to separate himself from CSA if and when he chooses to do so.”

Boos spends about 30 hours weekly on town matters and about five hours to his independent contractor services for CSA. He earned about $13,000.00 from CSA in 2019. “Commissioner Boos serves as an independent contractor for CSA on a part-time basis and the amount of money that he earns from CSA is not material to his economic well-being,” the ethics commission wrote. “Commissioner Boos considers serving as a Town Commissioner to be a full-time job and far more important and fulfilling for him than his relatively minimal amount of time devoted to CSA.”

“Despite the foregoing, we find that Commissioner Boos was and remains ‘affiliated’ with CSA within the meaning of Section 22-5(A) of the Town’s Ethics Ordinance. However, with respect to the application of Section 22-5(D) of the Town’s Ethics Ordinance, the Commission observes that on a case by-case basis it may matter whether a Town official’s outside employment relationship impairs his or her independence of judgment on a particular Town issue depending on whether that employment relationship is material to the economic well-being of the Town official and his or her family or incidental,” the ethics commission wrote. “For purposes of the votes or actions taken by Commissioner Boos that have been raised by SMAC in this proceeding, we find that Commissioner Boos’ employment relationship with CSA is incidental.”

Before Boos was elected to the town commission, the St. Michaels commissioners had entered into a non-binding letter of intent with the museum to explore an ownership exchange of 301 Mill Street (the town skateboard park) and 107 Mill Street (the museum parking area) on terms and conditions to be negotiated in the future, including price.

After Boos became a town commissioner, the commissioners negotiated with the museum to further explore the ownership exchange; as commission president, Boos signed letters of negotiation that were approved by the commissioners. The negotiations ended in May 2018, but the museum has always made it clear that it has a continuing interest in an ownership exchange of the Town Skateboard Park and the Museum Parking Area.

In summer 2018, the town commissioners were deciding where to locate a new town office and police station. “Among the properties then owned by the Town that were under consideration were the Town Skateboard Park, Town property situated on the corner of Fremont Street and Canton Street (the “Fremont Street Property”) and Town property situated on Boundary Lane (the “Boundary Lane Property”).”

At the town’s July 11, 2018, meeting, the commissioners considered the town office location and a recommendation from the Town Office Building Committee that, by a 3 to 2 vote, selected the Fremont Street property as the preferred site and the skateboard park as its second choice. The committee also “recommended that the Commissioners continue to look at the Town Skateboard Park as an option and authorize a sewer line inspection to determine the viability and cost of relocating sewer lines which were important to determine whether the Town Skateboard Park is a buildable lot.”

At that meeting, Boos made a motion to approve the Fremont  Street Property as the location for the new town office. Because there was no second, the motion failed. The town commissioners later voted 3-1, with Boos opposed, to authorize funding for a study to determine the viability and cost of relocating sewer lines on the skateboard park.

At the town’s August 8, 2018, meeting, the commissioners again considered the town office location. At this meeting, Boos again made a motion to approve the Fremont Street property as the location for the new town office, which was approved 4-0 (with Boos voting in favor). During this meeting, there was also a discussion of the proposed swap of the town skateboard park for the museum parking area. Boos said he was in favor of the swap because it would expand the town’s parking and made the most sense for the town.

During the Oct. 17, 2018, commission meeting, Commissioner Michael Bibb made a motion, seconded by Commissioner Joyce Harrod, to look into the feasibility of the skateboard park for the new town office. The motion failed by a vote of 2 to 2 with Boos for the second time voting against the feasibility study.

SMAC, in its complaints, asserted that at this juncture “Boos possessed an irreconcilable conflict of interest which should have caused him to recuse himself from voting” at the October 17, 2018, meeting, the ethics commission wrote. Generally, SMAC contends that by this time there was an economic relationship between the museum and CSA that precluded Boos from voting Oct. 17 against the feasibility study “or from thereafter participating in any vote of the Town Commissioners on either that issue or on any matter pertaining to the Town Office Location Issue.”

SMAC’s assertion stems from an Oct. 16, 2018, email from CBMM President Kristin Greenaway to Boos explaining that she had left a telephone message for him to discuss a brokerage related concept.

Boos testified that at some time before October 22, 2018, he had a general telephone conversation with Greenaway during which she generally inquired about the kind of services a boat broker offers and whether those services could assist the museum to obtain a better return on the sales of donated boats. “Based on the evidence presented, we cannot, and do not, find that this communication occurred prior to the Town Commissioners meeting of October 17, 2018. We can only conclude that it occurred prior to October 22, 2018.”

“After October 22, 2018, the first and only substantive meeting involving the Museum, CSA and Commissioner Boos occurred on October 29, 2018. At that meeting the Museum and CSA discussed the framework for a boat brokerage relationship between the Museum and CSA that could potentially result in the Museum paying a commission to CSA of 10% on Museum boats both marketed and sold by CSA and a 5% commission on Museum boats marketed by CSA but sold by a third party.

“At this meeting Commissioner Boos announced to both the Museum and CSA that he would be completely excluded from this economic relationship between the Museum and CSA if it came to fruition. Specifically, all documents entered into evidence and all witnesses who testified stated that Commissioner Boos explained that because Museum matters have the potential of coming before the Town Commissioners, he would have a conflict of interest and it would be unethical if he was to benefit economically from a business relationship between the Museum and CSA. For this reason, Commissioner Boos made clear that he would not receive any commissions from CSA for Museum boat brokerage business, and he would be excluded from handling any Museum boat brokerage transactions that passed through CSA if the Museum and CSA entered into an economic relationship.

“On November 5, 2018, the Museum and CSA executed a Memorandum of Understanding … establishing an economic relationship between the Museum and CSA whereby the Museum would pay a commission to CSA of 10% on Museum boats both marketed and sold by CSA and a 5% commission on Museum boats marketed by CSA but sold by a third party. Based upon the evidence presented, we find that the M.O.U. was drafted without any involvement from Commissioner Boos. We further find that Commissioner Boos, the Museum, and CSA all understood at the time of execution of the M.O.U. that Commissioner Boos would be excluded both economically and transactionally from the economic relationship formed between the Museum and CSA by the M.O.U.

“On November 21, 2018, Commissioner Boos sent an email to the principal of CSA, Curtis Stokes, memorializing his exclusion from participation in the economic relationship between CSA and the Museum.

At its December 13, 2018, meeting, “the Town Commissioners discussed the fact that the design work for the new town office had reached the point where it had been determined that location … on the Fremont Street Property would likely require twenty-one (21) parking spaces, but the anticipated design could only accommodate fourteen (14) or fifteen (15) spaces…. Thereafter, the Town Commissioners engaged in a discussion acknowledging that the Town’s consultant had concluded that the Town Code’s minimum parking standards were excessive and served as an impediment to efficient use of land resources within the Town.

“Following that discussion, Commissioner Boos made a motion to direct the Town Manager to draft a text amendment to revise the parking requirements in the Town Code to reduce those parking requirements to two and one-half spaces per one thousand square feet from the current specification of one (1) space per three hundred (300) square feet. This motion passed by a 5 to 0 vote…. While this vote would have general application within the Town, it also favored the Town Commissioners’ prior decision to locate the New Town Office on the Fremont Street Property because it solved the parking impediment to constructing the New Town Office on the Fremont Street Property.

“On December 21, 2018 Commissioner Boos emailed to Town Clerk/Manager Jean Weisman a letter addressed to the Ethics Commission requesting an advisory opinion regarding a potential conflict of interest that might exist for him in his role as Town Commissioner with respect to future interactions on behalf of the Town with the Museum as a result of the M.O.U. between the Museum and CSA. On January 17, 2019 the Commission issued an advisory opinion to Commissioner Boos.

“At the Town Commissioners meeting on January 10, 2019, during public discussion, written and verbal comments were submitted informing the Town Commissioners that some citizens favored the Town Skateboard Park to the Fremont Street Property for the location of the New Town Office. Additionally, a number of citizens stated that the Town Commissioners should recuse themselves from voting on the parking ordinance as a result of a conflict of interest involving relationships with the Museum. Thereafter, Commissioner Boos introduced Ordinance No. 499 to change the parking requirements in the Town Code. While no vote of the Commissioners was taken, Commissioner Boos’ action constituted a required procedural step in the process toward amending the Town’s parking requirements.

“At the Town Commissioners meeting on February 13, 2019, during public comment, the Town Skateboard Park Feasibility Issue was discussed including comments from President Greenaway of the Museum supporting the Fremont Street Property as the location for the New Town Office. Commissioner Bibb made a motion to commission a feasibility study for the Town Skateboard Park that was seconded by Commissioner Harrod. The motion failed by a vote of 2 to 2 with Commissioner Boos again voting in opposition.

Curtis Stokes and Boos testified that Boos has not handled any transactions for CSA involving museum boats and Boos has not received any commissions from CSA relating to the boat brokerage transactions between the museum and CSA.

Conclusions

SMAC’s complaint involved two provisions of the town’s ethics ordinance.

Section 22-5(A) states:

No Town official, Town inspector or Town employee shall:

A. Participate on behalf of the Town in any matter which would, to their knowledge, have a direct financial impact, as distinguished from the public generally, on them, their spouse or dependent child, or a business entity with which they are affiliated.

The ethics commission said any vote by Boos on any matter that would directly result in a financial benefit to him or to CSA would pose a conflict under this provision. For example, if the town commissioners were voting on whether to award a boat brokerage contract directly between the town and CSA, that would pose a conflict.

However, that has not occurred, according to the ethics commission. Instead, SMAC argues that the ethics commission “should infer that the museum was offering the proverbial ‘quid pro quo’ of the boat brokerage relationship with CSA in exchange for Boos’ votes” in favor of locating the new town office on the Fremont Street property in order to preserve the availability of the town skateboard park for a proposed property swap with the museum.

The ethics commission concluded “that use of the phrase ‘direct financial impact’ in § 22-5(A) means precisely that and should not be extended to encompass speculative indirect impacts as proffered by SMAC.

The commission found from the evidence that none of Boos’ votes or actions at issue had either a direct or indirect financial impact on him or CSA.

“Additionally, we conclude from the evidence that the Museum would have entered into the M.O.U. with CSA regardless of how Commissioner Boos voted on any issues that came before the Town Commissioners relating to the location of the New Town Office,” the ethics commission wrote. “Further, we conclude from the evidence that Commissioner Boos would have voted, and will continue to vote, in favor of locating the New Town Office on the Fremont Street Property regardless of whether there is any economic relationship between the Museum and CSA.

“Notably, Commissioner Boos voted at least twice in favor of locating the New Town Office on the Fremont Street Property before there was any suggestion of an economic relationship between the Museum and CSA.

Section 22–5(D) of the town ethics code states:

No Town official, Town inspector or Town employee shall:

D. Hold any outside employment relationship that would impair their impartiality or independence of judgment.

The ethics commission said Section 22-5(D) is broader and could potentially pose a conflict of interest as a result of an indirect financial benefit. However, the panel said this section gives greater discretion to the ethics commission “because the standard more subjectively requires us to determine” whether Boos’ employment relationship with CSA impaired his
impartiality or independence of judgment on the votes raised by SMAC.

“We found Commissioner Boos to be credible and sincere when he testified that he prioritizes his role as a Town Commissioner significantly above his incidental employment relationship with CSA,” the ethics commission wrote. “Moreover, when the prospect of an economic relationship between the Museum and CSA arose, Commissioner Boos demonstrated that his priority is to serve as a Town Commissioner by swiftly removing any possibility that a boat brokerage relationship between the Museum and CSA could impair his impartiality or independence of judgment. Specifically, Commissioner Boos promptly advised both parties that he would have no involvement economically or even procedurally in any transactions between the Museum and CSA.

“Because Commissioner Boos’ employment relationship with CSA is solely based upon commissions that are tied to specific boat brokerage transactions, Commissioner Boos is able to insulate himself from transactions with CSA’s clients if he chooses to do so,” the ethics commission wrote. “Here, that is precisely what he has done. Consequently, we find that Commissioner Boos’ employment relationship with CSA did not impair his impartiality or independence of judgment.

“For all of the foregoing reasons, we conclude that … none of the votes or actions taken by Commissioner Boos that have been raised by SMAC in this proceeding created an impermissible conflict of interest.”