Town Counsel: No Favoritism In Mooring Assignment, But Policies Need Review

By: Alan Pollock

Topics: Boating

CHATHAM Harbormaster Stuart Smith was not showing preferential treatment when he allowed his brother's boat mooring in Ryder's Cove to be used by Selectman Seth Taylor.

That's the opinion of Town Counsel Douglas Louison, who investigated the matter at the request of resident George Myers.

Louison said Smith was following established practice last May in issuing the third party permit to Taylor, allowing him to use the choice mooring held by Smith's brother, Gregory. But he also opined that the established practice is not necessarily consistent with waterways regulations and town bylaws.

Town regulations require that, in order to use a mooring already permitted to another person, one must be on a waiting list for a mooring in at least one of the town's mooring fields. Taylor was on the waiting lists for three of the town's waterways, but not for Ryder's Cove, where Gregory Smith's mooring is located.

While town regulations and bylaws do not explicitly stipulate that third party moorings will be assigned to people who are on a waiting list for that particular mooring field, counsel opined that a reasonable interpretation of both documents is that a temporary user of a mooring must be on a waiting list for the particular area where the temporary mooring is placed.  The third party mooring application form instructions at the time stipulated that “you must be on the waiting list for this mooring area to be a third party user.” The form has since been revised to remove the words “for this mooring area.”

That revision was one of the possible remedies recommended by Louison in his legal brief for the town. It may also be necessary to explain that, just because a particular boater has reached the top of a waiting list, he or she may not be next in line for a mooring.

“A misconception may exist that moorings must be rigidly assigned to the next available person on a particular waiting list,” counsel wrote. But the rules and common sense dictate that the harbormaster's department only assign moorings to those with boats suitable for that site, and clarifying that on the waiting list application may be useful, Louison wrote.

Because Taylor is a selectman, there is an inherent potential for the appearance of a conflict of interest, Louison said. But based on the testimony of those involved, “I do not find any evidence that Taylor was treated differently or preferentially in the manner in which he was permitted the temporary third party use of the mooring due to his public position, nor do I find that he expressly or by inference used his public position to his personal advantage in this situation,” counsel wrote.

Myers said he is not satisfied with Louison's opinion.

“It's hard for me not to think that there was some favoritism involved, because the mooring was assigned to the harbormaster's brother,” he said. Myers said he doesn't believe counsel examined the potential conflict with the same degree of detail as the state ethics commission would have. He also said he believes the mooring assignment lists held by the harbormaster department are in disarray, and that there should be more scrutiny of third party mooring assignments.

Citing the town's media policy, Harbormaster Stuart Smith declined to be interviewed for this article. In a July 11 memo to Smith, Town Manager Jill Goldsmith said she agrees that the department's practices in assigning third party moorings is inconsistent “with the plain reading of the waterways bylaw and harbormaster mooring regulations,” and said some amendments should be considered by the town.

Taylor denied any wrongdoing, saying he availed himself of the third party mooring, “as could any other citizen of the town of Chatham.” While mooring spaces are publicly owned, the actual moorings are private property, and when owners choose to allow third parties to use those moorings, they are allowed to select someone they know and whom they think is responsible, Taylor said. He said he believes the intent of the regulations is that, to be eligible for a third party mooring, a person must be on at least one mooring waiting list in town, not necessarily the one where a third party mooring becomes available. It would be impossible to predict where a third party mooring might open up, Taylor noted.

Taylor said town counsel's investigation was instigated by Myers as part of a concerted effort to attack his character. He cited Myers' claims last year that Taylor was improperly registered to vote in Connecticut and Chatham. Taylor said he never voted illegally.

“This has been nonstop,” Taylor said. “I'm simply not going to engage in gutter politics.”

Editorial note: This article has been revised to clarify counsel's opinion that a reasonable interpretation of the bylaw and the mooring regulation is that a temporary user of a mooring must be on a waiting list for the particular area where the temporary mooring is placed.  Aug. 1, 2016