WILMINGTON, MA — At last week’s Wilmington Board of Selectmen Meeting, Town Manager Jeff Hull brought forward a request from Attorney Mike Newhouse to appear before the Board of Selectmen, alongside representatives from a company called GFI, to discus a potential a warehousing proposal on the Olin site, as an alternative to the New England Transrail transloading facility proposal.
Newhouse formerly served as Wilmington Town Counsel and as a longtime member of the Wilmington Board of Selectmen. As Town Counsel, he represented the town in June 2003 relative to the first petition for exemption filed by New England Transrail, which was dismissed soon thereafter.
As a result of his previous time as Town Counsel, in order to represent GFI, Newhouse is seeking to obtain the informed, written consent of the Board of Selectmen.
“As per Supreme Judicial Court Rule 3:07, and specifically Rule 1.9(a) of the Code of Professional Conduct – Duties To Former Clients, a lawyer who has formerly represented a client in a matter shall not thereafter present another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing,” wrote Newhouse. “In this case, reasonable minds may differ as to whether my prospective representation of GFI, relative to a proposed warehousing facility at the property, constitutes a ‘substantially related matter’ for the purposes of Rule 1.9.”
If a discussion with Selectmen is added as a future agenda item, Newhouse intends on bringing representatives of GFI to (1) share GFI’s conceptual plans with the Board; (2) explain its contractual arrangement with NET relative to the property; and (3) address technical and/or policy matters raised by the board and town administration.
“I would recommend the board take [Attorney Newhouse] up on this request and that this be an item for your meeting on September 24,” suggested Town Manager Jeff Hull, after summarizing Newhouse’s letter to the board.
“I’m sure folks are wondering where this came from. I was approached in April over the prospect of whether I would be interested or willing to listen to a proposal to consider a development other than what’s being proposed by NET at the Olin site,” explained Hull. “From my perspective, the fact of the matter is, there’s probably one thing in the community everyone can agree to – we don’t want a transrail facility at the Olin property. As part of the EPA’s mandate, in addition to looking for long-term remediation of the site, they’re also expected to provide a site that can be used in the future for some type of purpose. We need to recognize that when this site is finally remediated, it will be used for some purpose. From my perspective, I think it’s reasonable to entertain options. I’m certainly not saying I endorse this option, but I think we ought to be considering alternatives to what we all believe is an inappropriate use proposed by NET.”
Selectman Mike McCoy voiced his vehement opposition to Attorney Newhouse’s proposed involvement.
“We have a former Town Counsel and former Selectman who wants the Board of Selectmen to allow him to represent the merger of these two companies and strategize against the town? I just think this is completely out of order. I think we need an opinion from Town Counsel. I think this is crazy,” said McCoy. “[Mr. Newhouse] has all the knowledge of all the executive sessions the Selectmen held [during his tenure] as the town has been fighting against Olin & New England Transrail.”
McCoy asked Town Manager Hull if he talked to Town Counsel yet about Newhouse’s request to present GFI.
“I have not spoken to Town Counsel about that specific request,” responded Hull. “I will certainly pose that question if the board is so inclined to have the group come in. We’ll get that question answered.”
“I agree with my colleague. I’d like to see a letter from Town Counsel on the ruling of this letter from Mr. Newhouse,” said Selectman Ed Loud. “I’m not going to vote on anything without Town Counsel’s advice.”
“I’ll echo the comments of Selectmen McCoy and Selectman Loud,” added Selectman Jonathan Eaton. “I think any move we do with respect to this property needs to be done under the advice of Town Counsel.”
After listening to the Selectmen, Town Manager Hull agreed to consult Town Counsel regarding Attorney Newhouse’s request to represent GFI.
Former Selectwoman Suzanne Sullivan and recent Selectman candidate Rob Fasulo expressed concerns over Newhouse’s request during the meeting’s ‘Public Comments’ portion.
“I just want to let the board know how concerned I am that we have correspondence from Dan Deutsch commenting on the New England Transrail merger,” began Suzanne Sullivan. “And now you have an ex-Town Counsel and ex-Selectman urging you to do the opposite of what the comments were to the Surface Transportation Board. I see that there’s a huge conflict here and I’m really concerned about it. The word ‘traitor’ comes to mind. I don’t actually want to say it, but that’s what comes to mind, because I feel as though this is a slap in the face to the community.”
“Let me just be clear,” responded Town Manager Jeff Hull. “Mr. Newhouse is seeking to work with this group to offer an alternative to the transloading facility. The suggestion that he’s working against our efforts to have the [merged] organization be thwarted through the Surface Transportation Board, I don’t know that that’s accurate. They’re two separate issues.”
“One of the things that has been discussed as part of this potential conversation about an alternative is that a standstill agreement be considered between the town of Wilmington and this entity, which would freeze any efforts by New England Transrail to go forward while this is being considered,” continued Hull. “I’m not, at this point, prepared to endorse this alternative, but to take the position that we aren’t going to consider any alternatives whatsoever and simply fight the fight against transrail is not an appropriate approach.”
“I certainly don’t have to defend Mr. Newhouse, but using the word ‘traitor’ is way out of line in my estimation,” added Selectman Chair Kevin Caira. “This is a gentleman who served on the board as a volunteer for 20+ years. He has a family with children growing up in town. He’s very committed to the community. Using that word is a bit out of line.”
“The town’s position over the years has been that work needs to be completed on the Olin site before any development happens there. We’re 13-14 years into the process and we still haven’t finished the remedial investigation. This site shut down our water supply,” responded Sullivan. “Now we have an ex-Town Counsel and ex-Selectman talking about representing a development on that property. For me, it’s not necessarily what the proposal is, it’s who the person is. Let that sink in because there’s a conflict here. You’re talking like he’s representing the interest of the town, but he’s actually representing the interest of the developer.”
“You guys up there are municipal employees,” said Rob Fasulo as he addressed the Selectmen. “I believe you guys all have to watch the [state’s conflict of interest training] video that covers Massachusetts General Law Chapter 268A, Section 18. Everyone up here, plus Mr. Newhouse, is under a ‘forever ban’ under that section.”
According to a summary of the Massachusetts Conflict of Interest Laws, the section Fasulo cites does prohibit former municipal employees to work for anyone other than its former municipality on a matter that they worked on as municipal employees.
The state’s training course on the Conflict of Interest Laws reads: “In connection with any particular matter in which you participated as a municipal employee, you cannot
- be paid by anyone other than the municipality in which you were a former employee
- act as an agent or attorney for anyone other than the municipality in which you were a former employee.”
“I think you’re treading down dangerous waters, even entertaining this. He shouldn’t even be given consideration on this under that section,” stressed Fasulo. “You know there’s a conflict here… This is a state law… I think you’re going down the wrong path.”
Selectman Chair Kevin Caira assured Fasulo that Newhouse’s request would be vetted through Town Counsel.
“From my perspective, a resident has been very transparent and brought a proposal that he would like to present to the Board of Selectmen to make a decision on in the future. We’re not making a decision tonight. We just received this information in our packet over the weekend,” added Selectman Greg Bendel. “We’ve decided to get the advice of Town Counsel so we can get more clarification and perhaps hear the presentation from the resident. He’s being very transparent about his history and involvement in town, and cites law I didn’t know existed. I appreciate his transparency. I’m happy to hear out any resident that has a proposal for an alternative to the Olin site.”
A Comment From Attorney Mike Newhouse
When asked to respond to the comments made about him at the meeting, Mike Newhouse told Wilmington Apple:
“The purpose of requesting to be included on the Selectmen’s agenda is to enable the Board to make an informed and transparent decision, based on the situation at hand, and to be available to answer any questions they might have. I am not going to respond to personal insults, as that kind of discourse is counterproductive to the process, and only serves to distract the public and town officials from reviewing a potential opportunity to keep the onerous transrail project out of town once and for all.”
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