MIDDLEBURY — A decision by the Middlebury selectboard on Tuesday to exclude, due to conflict-of-interest allegations, two of its members from voting on a proposed town-gown agreement on a new municipal building and recreation center could substantially impede the plan from ever coming before the local electorate.
At issue is a complaint filed on Oct. 14 by Mead Lane residents Ron Kohn and Barbara Shapiro. Neighbors Virginia Heidke, Ben Burd and James Spannbauer also signed the complaint. The complaint alleges that selectboard members Victor Nuovo and Susan Shashok were in violation of the board’s conflict-of-interest policy by participating in an Oct. 8 vote in which the panel endorsed a document describing the terms of a final agreement with Middlebury College relating to construction of new town offices and a recreation center.
Nuovo is a retired Middlebury College professor who holds what he said is the symbolic title of “professor emeritus”; Shashok’s husband, Alan, works for Middlebury Interactive Languages, an enterprise that is 40-percent owned by the college, with the remaining 60 percent owned by a company called K12.
The complaint suggests that Nuovo and Shashok should have recused themselves from voting on the town-gown term sheet due to section 7.2 of the conflict-of-interest policy — drafted in 1975 and last revised in 1984 — which essentially nullifies official actions taken in which the direct outcome was influenced by one or more votes from members believed to have had a conflict of interest.
It was on Oct. 8 that the board voted 5-1, with Selectman Craig Bingham opposed and Selectman Travis Forbes absent, to OK a term sheet outlining the basis of an agreement it hopes to negotiate with Middlebury College regarding the town office/recreation center project. That agreement, among other things, calls for the college to donate $5.5 million in aid toward a total $7.5 million project to erect a new municipal building at 77 Main St., in place of the college’s Osborne House, which would be relocated to a town-owned parcel on Cross Street. The plan also calls for a new recreation center to be built off Mary Hogan Drive. In return for its contribution, the college would receive the current municipal building/gym site at the intersection of South Main and College streets. The town would clear that site, which would be maintained by the college as a park.
It’s a deal that has drawn criticism from some area residents, including Bingham and some signers of the Oct. 14 conflict-of-interest complaint. Opponents have been urging the selectboard to decline the college offer and to rebuild the municipal building and recreation structures at their current location.
The selectboard discussed the conflict-of-interest complaint in open session on Tuesday, and also held a vote on whether Shashok’s and Nuovo’s Oct. 8 votes on the term sheet should be nullified and the document reconsidered at the panel’s next meeting, on Nov. 5.
Both board members provided statements related to the conflict-of-interest matter.
Shashok said she only recently learned of the town’s conflict policy and has since studied it in-depth.
“Embarrassment is always an option on this type of topic because if we don’t call out a potential conflict ourselves, the public has every right to call it out for us,” Shashok wrote in an e-mail to her fellow board members on the topic. “The Vermont League of Cities and Towns recommends to err on the side of caution with any appearance of conflict and I wish to honor that recommendation.
“I am embarrassed that I did not see the connection before, but there is not much more that I can do than deal with it openly and honestly as I go along,” she added.
Nuovo confirmed he had been a tenured professor at the college from 1962 to 1994. He now holds the title “professor emeritus,” a moniker he said is purely “honorary.” He is retired from the college, though he has been sporadically called into service on an emergency basis to teach a class or two during the past few decades. Nuovo acknowledged the college had paid into his pension fund while he was a faculty member and has acted as a pass-through for grant money he himself had applied for. But he did not perceive those actions as warranting a recusal on college-related votes.
“I have no business interests, direct or indirect, in the town of Middlebury, or elsewhere for that matter, that might benefit from the town/college proposal,” Nuovo wrote in his statement on the matter.
“Furthermore, I can assert categorically that no member of my family is employed by Middlebury College or by any of its affiliates,” he added.
Nuovo also challenged the notion that his lengthy association with the college might predispose him to cast votes in the institution’s favor.
“I have been a resident of the Town of Middlebury for 52 years and a member of the selectboard for the past eight years,” Nuovo said. “In that capacity, my duty is to serve the Town, and with good reason. Without the town, our civil society, its government and institutions, we would lack foundations for a safe, prosperous, and happy life. The town comes first. Indeed, there would be no Middlebury College if the town hadn’t created it and given it its name. There is, indeed, a bond between the town and the college. It is a bond of mutual support and gratitude.”
COLLEGE OFFERS ITS OPINION
Patrick Norton, the college’s treasurer and vice president for finance, was present at Tuesday’s board meeting and was asked to weigh in on the conflict-of-interest debate surrounding Nuovo and Shashok. He said Nuovo had been retired from the college for two decades, and that Alan Shashok is not in a position with Middlebury Interactive Learning that would require him to come before the college’s board of trustees.
“The college does not see any conflict here,” Norton said. “We believe (the vote on the term sheet) shouldn’t be invalidated.”
Bingham disagreed.
“To foster the public’s trust in town government we must avoid the appearance of a conflict of interest,” Bingham read from his own statement on the matter. “A statement professing loyalty to the town is ineffective in dispelling the appearance of a conflict because the public’s perception of the facts is what will cause their trust to be diminished. This is why our rules require recusal, to assure that decisions do not appear to be tainted.”
He said the selectboard should ask if its conflict-of-interest rules require recusal from voting if a member’s spouse “is employed by a company whose owner wants to enter into a contract with the town,” or if that member is “associated with a company that wants to enter into a contract with the town.”
“An answer of ‘yes’ to these questions means that, in my opinion, our rules were not complied with when the board took the action that is the subject of the complaint,” Bingham said.
Bingham also suggested — and a majority of the board concurred — that both Nuovo and Shashok be excluded from votes that evening on whether a conflict-of-interest infraction had occurred during the Oct. 8 referendum on the term sheet. That meant a total of five board members were eligible to vote — first on whether Shashok’s vote on the term sheet should be rescinded, then on the matter of Nuovo’s.
Middlebury’s town charter requires at least a four-vote majority for any vote to become a valid action of the seven-member selectboard. A showing of hands revealed the following outcomes:
•  On Shashok, three selectmen (Dean George, Gary Baker and Nick Artim) voted that in their opinion, Shashok had complied with the town policy and had not shown a conflict of interest in voting on the term sheet on Oct. 8. Selectmen Travis Forbes and Bingham abstained their votes. This means that Shashok did not garner the requisite four votes, and her Oct. 8 vote was rescinded.
•  George, Baker and Artim voted that in their opinion, Nuovo had complied with the town policy and had not shown a conflict of interest in voting on the term sheet on Oct. 8. But Bingham and Forbes voted that, in their opinion, there had been a conflict. Like Shashok’s, Nuovo’s Oct. 8 vote on the term sheet was rescinded.
ALL EYES ON FORBES
The outcome of Tuesday’s conflict-of-interest votes means that neither Nuovo nor Shashok will be able to decide on the term sheet with Middlebury College when it is brought up for a revote by the board on Nov. 5. That means four of the eligible five voting members will have to endorse it for the term sheet — and therefore the project — to advance. Since Bingham is likely to again vote against the term sheet, it means that all eyes will be on Forbes.
Forbes on Wednesday morning was still unsure of how he would vote on Nov. 5.
“I have to put some more thought into it,” he said.
The conflict-of-interest complaint has drawn criticism from some townspeople who perceived it as a parliamentary end-round orchestrated by opponents of the town offices/recreation center project who’d like to see new life breathed into the concept of rebuilding those facilities at the current site. And they questioned why such a complaint was not filed following last month’s vote on a town-gown term sheet on the less controversial project involving the swap of municipal land behind the Ilsley Library for the college’s purchase and demolition of the Lazarus building at 20 Main St.
Kohn said on Wednesday that he in retrospect believes the board’s vote on the Lazarus building term sheet should have been challenged. But he noted the town’s conflict-of-interest policy requires that a complaint be filed within seven days of the board’s vote.
“Nobody brought it up,” he said.
Nuovo said he is disappointed to see the term sheet held up and the prospect that Middlebury voters might not get to vote on the project come Town Meeting Day, next March 4.
“I’m troubled by their tactics,” Nuovo said of some of the project’s opponents.
Middlebury Town Manager Kathleen Ramsay said that if the term sheet is not endorsed by the requisite four board members on Nov. 5, the panel could try to revise the document in a manner that might earn support from opposing member(s).
Middlebury Town Clerk Ann Webster confirmed that a Middlebury resident could choose to file a citizens’ petition (bearing at least 10 percent of the town’s registered voters’ signatures) requesting that the project be put to a bond vote.
Editor’s note: This story was updated since its original posting to correct an error. Originally it said that 5 percent of voters needed to sign a petition to vote on a bond, but after the story ran and it was called to our attention that the requirement is 10 percent, we checked with the town clerk to confirm our error and corrected it here. We regret the error.
Reporter John Flowers is at [email protected].