Published in the October 21, 2015 edition


LYNNFIELD — Former Selectman Mark McDonough has made good on his promise to file a conflict of interest violation complaint against current Selectman Christopher Barrett.

As reported in last week’s Villager, the matter involves the board’s ongoing discussions surrounding the dilapidated Perley Burrill property at 906-914 Salem St. owned by Joseph Pedoto.

McDonough had objected to Barrett participating in updates on those discussions during the board’s regular public meetings on Sept. 9 and Oct. 5 because he is a direct abutter to the property and therefore has a financial interest in the proceedings. Barrett maintains that as a “resident of Lynnfield” he is entitled to be present and speak on the matter.

The board is already down one member during discussions regarding Perley Burrill because Selectman Tom Terranova has been recusing himself for about 18 months. Terranova formerly served as Pedoto’s accountant and has stated publicly that his ties to Pedoto have been severed. This leaves only Selectmen Chairman Phil Crawford without a potential conflict, which means the board cannot form a quorum.

However, exemptions do exist within the state’s conflict of interest law to deal with such unique situations. One possibility is Section 19 (b)(3) of Chapter 268a which states that: “It shall not be a violation of this section … if the particular matter involves a determination of general policy and the interest of the municipal employee or members of his immediate family is shared with a substantial segment of the population of the municipality.” The sticking point would be what is considered “substantial,” which may be defined as a minimum of 10 percent of the community.

According to a review of a State Ethics Commission advisory, a more formal exemption would fall under the “Rule of Necessity,” which is not a law but was “developed by judges who applied it in their court decisions” to be used as a last resort only upon prior written advice from town counsel.

Its basic principle is it can be invoked when “an elected board is legally required to act on a matter and it lacks enough members to take valid official action solely due to board members being disqualified by conflicts of interest from participating in the matter.” Once invoked, it would permit all members of the board to take action on that specific matter.

The town has been attempting to get Pedoto to clean up his shuttered gasoline station and the abandoned buildings for years and resorted to taking Pedoto to court last year to force him to remove five underground storage tanks that the town feared could be leaking. If the tanks had not been removed Pedoto would have been held in contempt of court and could have been arrested and jailed. The tanks were removed earlier this year.

The town, through its zoning enforcement officer, has also been engaged in a cat-and-mouse game with Pedoto for many years regarding the presence of alleged illegal business activity on the premises.

Pedoto also owes over $170,000 in back property taxes going back at least eight years for which the town has placed a lien against the property. Pedoto is also in arrears on his mortgage with Bank of America that Crawford has said is in the one million dollar range. Crawford has been trying to arrange a meeting between the bank and Pedoto, with the assistance of state Rep. Brad Jones, regarding the mortgage to enable a potential developer interested in cleaning up the site and creating up to three house lots without the risk that the bank will take the property and sell it once it is cleaned up.

The town has maintained that the grandfathered status of the non-conforming business use in a residential zone has lapsed since the gas station is no longer operational; thus the only by right use for the property reverts to residential.

Subsequent to the board’s Oct. 5 meeting during which McDonough challenged Barrett to recuse himself and leave the room due to the appearance of a conflict of interest, McDonough filed a complaint with the Trial Court of Peabody District Court on Oct. 13.

A court date for a magistrate’s hearing at which Barrett must appear has been set for Wednesday, Oct. 28 at 2 p.m. on one count of a conflict of interest violation by a municipal employee per MGL Ch. 268A Section 19(a).

The magistrate’s hearing will be held “to determine whether criminal proceedings will be commenced” according to documents provided to the Villager by McDonough, who declined to comment further on the matter since it is currently in litigation.

Barrett resides at 38 Fairview Ave. which abuts the undeveloped rear portion of the property. He is part owner of the property with his wife and his mother, according to paperwork McDonough filed with his complaint.

Contacted by the Villager, Barrett declined to comment on the specifics of the case, stating, “I want to keep this positive and I want to continue to move the town forward and not get caught up in this type of negativity. And I want to make sure that a resolution for Perley Burrill is in no way delayed and continues to move forward.”

Town Counsel Thomas Mullen told the Villager that he could not comment on anything that may have occurred in the past relating to this case.

“It is my job to decide how the selectmen might go forward with discussing a matter as important as Perley Burrill. However, the actual representation in court of Mr. Barrett or anybody else who might be alleged to have violated a state ethics law is something I can’t get into,” Mullen said.