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Veteran meeting member raises legal issues; town counsel responds

Since Eisenhower was president, in 1952, the Town Manager Act has provided rules about how Arlington operates.

Lenard Diggins, Select Board candidate, 2020Diggins

Town of Arlington seal

Amended numerous times since, most recently in 2018, the act has been the town's legal guide.

Now Patricia Worden, a veteran member of Town Meeting and former town official, says the Select Board is not following that guidance.

In a Jan. 19 email to YourArlington, with the subject line "serving illegally," she wrote:

"Do you know that Len Diggins is a member of the Transportation Advisory Committee, the Housing Plan Implementation Committee, the Arlington heights-neighborhood-action-plan-Implementation Committee? He is serving on all three illegally in violation of Section 3 of the Town Manager Act of which he is aware. Here is the pertinent section:

"'Town Manager Act, Section 9. Multiple Officers. – A member of the board of selectmen, or of the school committee, or of the finance committee shall, during the term for which he was elected or appointed, be ineligible, either by election or appointment to hold any other town office except the office of town meeting member and except membership on a committee, board or commission when participation of such member is required by Town Bylaw or by a vote of the Town Meeting …'”

"This is just one of the many ways in which state law and bylaws of the town are being grossly violated by the town and its chosen appointees and employees."

Town counsel responds

Asked about this charge, Town Counsel Doug Heim responded Jan. 25 by quoting the full reference in question:

"'A member of the Select Board, or of the school committee, or of the finance committee shall, during the term for which the member was elected or appointed, be ineligible either by election or appointment to hold any other town office, except the office of town meeting member and except membership on a committee, board or commission when participation of such member is required by Town Bylaw or by a vote of the Town Meeting. Any person appointed by the Town Manager to any town office under the provisions of this act or of any general or special law shall be eligible during the term of said office to appointment to any other town office, except that the town accountant shall not be eligible to hold the position of town treasurer and collector. The Town Manager may, subject to any applicable provision of the General Laws, relating thereto, and subject to the approval of the Select Board, assume the duties of any office which said town manager is authorized to fill by appointment.'"

He followed with how he sees that section:

"The primary purpose of this provision when the Manager Act was passed was in the 1950s was to prevent a member of three powerful decision-making boards or committees (Select Board, School Committee, Finance Committee) from serving on other boards and commissions such as the Park and Recreation Commission, the Zoning Board of Appeals or the ARB, unless there's essentially a charter vote establishing a committee or commissions calling for a representative from one of those boards.

"It's very clear in those contexts, and it makes sense; you don't want the same persons on the Select Board serving as a member of the School Committee or as an assessor, or as the town treasurer.

"Further, the language of the act references "except ... when participation of such member is required by Town Bylaw or by vote of the Town Meeting," most likely because many Town committees and commissions are established in the town bylaws or as a committee of Town Meeting (both of which require a Town Meeting vote to create).

Advisory bodies

"The Transportation Advisory Committee is an advisory body created by the Select Board to advise the Select Board, and contemplates Select Board member participation. The purpose of TAC is to advise the decision-making body that governs Traffic Rules and Order -- the Select Board.

"With respect to HPIC, to my understanding, Mr. Diggins is specifically serving as the Select Board liaison to such committee and was voted by the board to serve in that capacity.

"While, I'm not as familiar with the Arlington Heights Neighborhood Action Plan Implementation Committee or how it was chartered, it seems to have a similar genesis to HPIC -- established as an ad hoc advisory committee following the creation of the action plan with the purpose of advising other bodies like the [Redevelopment Board].

"In sum, as far as I understand it, Select Board service on these bodies is either contemplated (if not called for), and/or is relative to ad hoc advisory bodies, which are not decision-making authorities, and are not created by Town Meeting, the town bylaws (or the General Laws, for that matter).

"If there's a concern or lack of clarity about a member of the Select Board serving in any capacity on HPIC or the Neighborhood Action Plan Committee, it can be clarified. However, suggesting that Mr. Diggins is willfully violating the Manager Act is not supported by the facts or the spirit of what the Manager Act is meant to achieve."

Worden responds to Heim

Heim's explanation was shared with Worden. Asked to comment, she wrote Feb. 3:

"Mr. Heim’s position seems to be that some committees are not committees. It seems to me that plain English is a better guide to legislative intent than trying to distinguish between committees and committees. I never said that Mr. Diggins was willfully violating the law -- he was just unaware of what the law is. I dispute Mr. Heim's knowledge of what the Town Manager Act is meant to achieve."

Asked what she sees as her goal is raising this issue, the Precinct 8 Town Meeting member responded Feb. 3: "My overall goal is that every Town official should follow the law."

Diggins comments

Diggins was provided comments from Worden and Heim, and he answered Feb. 5:

"It is my desire to respect both the spirit and the letter of the law. I sleep well at night feeling that I am respecting the spirit of the law, and town counsel has assured me, both before and after I campaigned for a seat on the Select Board that I would be and that I am following the letter of the law.

"I feel very fortunate that I have the time, energy and good health to engage a lot in town governance through a variety of commissions, committees, coalitions and groups. If our understanding of the law changes, and I have to scale back my participation in meetings as a member of the Select Board, that will be fine.

"I am just as happy and I can be just as effective interacting as either an unelected resident or a Town Meeting member."

Jan. 13, 2020: Diggins: Select Board aspirant focuses on service, public-engagement ideas

This news summary was published Saturday, Feb. 6, 2021.

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