Facing pressure from those seeking to continue the current set of access rules at Higgins Beach, Scarborough Town Councilor Bill Donovan has announced that he will recuse himself from a final vote on new parking measures, which is scheduled for Oct. 7.

While several members of the council have publicly stated they don’t feel Donovan needed to recuse himself, because there would be no “financial gain involved” in the vote, Donovan said he’s taking the step to “avoid the perception of a conflict.”

Donovan owns property in Higgins Beach, although he hasn’t lived in the home, which is under contract, for nearly a year, and in recent weeks has been accused by the Surfrider Foundation, among other opponents of new rules for the beach, of an impermissible bias.

During a public hearing last week on proposed parking rules, which would limit public parking on Bayview Avenue to 30 minutes during the summer months, Donovan read a statement announcing he would recuse himself from the debate in order to “protect the integrity of the council.”

This week Donovan told the Current he has “a lot of confidence in the council and I’m sure they will act responsibly” in terms of deciding whether parking on Bayview should be reduced from the current 1-hour limit.

Donovan acknowledged that he’s been the target of a lot of the vitriolic comments being made during the debate about whether the town should take steps to cure what some see as problem behavior at Higgins Beach, but said this week that anyone who really knows him knows, “I have no bias in my public capacity as a councilor.”

Donovan said his only focus as a councilor is doing “what is in the best interests of the town.” Even so, he also admits that he would like to see “the (Higgins Beach) neighborhood properly protected and for the town to find a way to uphold the policy of short-term parking” on Bayview.

He also said, “I have no animosity toward anyone” and said that the comments being made by those who are “openly critical and outspoken say more about them than about me.”

In all, Donovan said, he’s now “stepped away from the issue” completely and is relying on his fellow councilors to “act responsibly.”

The proposal to further limit the free parking on Bayview Avenue has arisen from a request by several residents of Higgins Beach for the town to address issues from tailgating to changing in and out of wetsuits to misuse of the 1-hour parking spots.

These issues were originally raised in February and have taken the entire spring and summer to resolve. Going into its Sept. 2 meeting the Town Council was set to debate two recommendations that came from its Ordinance Committee.

Those two measures would have reduced early morning parking on Bayview by an hour and made the changing of clothes at any beach or park illegal under a local ordinance.

Instead of voting on those two proposals, however, Town Council Chairwoman Jessica Holbrook introduced the measure to instead limit parking to 30 minutes all day during the summer months.

And, this is the proposal councilors are set to vote on at their Oct. 7 meeting. However, there is a movement afoot to convince councilors to stick with the 1-hour parking limit to continue beach access for those who just want to spend a short time in the water or walking the beach.

In terms of whether Donovan was required to recuse himself under state or local conflict of interest rules, Town Manager Tom Hall said there was no legal opinion given to the council at the Sept. 16 public hearing.

“No lawyer spoke at the meeting, (although) there were residents that raised legal questions, Hall said.

He added, “It is the duty of a councilor to disclose a real or perceived conflict of interest and based on that disclosure the councilor can choose to recuse themselves.”

Hall also said that, “failing the voluntary recusal, it is the responsibility of the remaining councilors to decide whether there is a real or perceived conflict for which a councilor should be relieved of (their) responsibility to vote.”

Going into last week’s council meeting, Hall said that Town Attorney Philip Saucier, from Bernstein Shur, “offered background and advice on how to properly consider potential conflicts of interest.”

In a memo to the council, Saucier said, “the common law standard related to conflicts of interest is whether the municipal official is placed in a situation of temptation to serve his own personal pecuniary interest to the prejudice of the interest of those for whom (they’re) authorized and required to act.”

Saucier also said that, “municipal officials shall attempt to avoid the appearance of a conflict of interest by disclosure or by abstention. The idea of avoiding even the appearance of any impropriety is to safeguard the integrity of the proceedings from the public’s viewpoint.”

Overall, he said, the question of a conflict of interest comes down to two points – can the councilor “participate in the discussion or deliberations without any bias (or) predisposition impacting (their) decision.”

And, will the councilor base their decision “solely on the record of the proceedings and on (their) best judgment on applying the applicable and relevant law and standards.”

If the answer is yes, Saucier said there is no need for a recusal, but if the answer to either question is no, then “the official should abstain from voting or participating in the proceeding.”

Bill Donovan

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