We wanted to address an issue that has surfaced at the last three Board of Health meetings.
We stress that these comments are not meant to distract from the important agenda items before the Board of Health this evening [Jan. 4]. The hope is that these comments result in the Chair and the impacted Board member working directly and collegially with Town Counsel between now and the next meeting to resolve the “Testing” conflict issue that has surfaced at the last three meetings.
At the Nov. 30, 2020 meeting it was stated in the approved meeting Minutes, “… that it appears that there is a substantial possibility that any policy or statement adopted by the Board on the matter of testing in which the Bedford Research Foundation, a corporation of which a Board member, Dr. Kiessling, serves as an officer, has a financial interest owing to its interest in providing testing services to the Town for compensation. I think that before the Board proceeds with the review of the policy statement proposed by Dr. Kiessling or to have a discussion on that topic with her participating, it would be appropriate for Dr. Kiessling to obtain an opinion from the State’s Ethics Commission or from Town Counsel to the effect that her participation would not be a violation of the State’s Ethics Act.”
The Board went on to say that in regard to any Board policy statement on testing there is a potential for conflict of interest and urged Dr. Kiessling to seek counsel to make sure the Board is operating according to the by-laws and working with the best intentions of the Board and Bedford residents. Dr. Kiessling agreed to explore the issue and as necessary obtain an opinion from either Town Counsel or the State Ethics Commission.
At the Dec.14, 2020 meeting from the draft meeting Minutes, the Board revisited the potential conflict issues. Dr. Kiessling reportedly contacted the State Ethics Board and explained that “… according to the State Ethics lawyer she spoke with, there was no conflict of interest regarding Dr. Kiessling discussing testing activities being done by the Bedford Research Foundation because there is no financial relationship between the Foundation and Bedford, nor is there any plan to enter into such a relationship.” Dr. Kiessling also reported that per Chapter 268A subsection 23(b)(3), she filed a public disclosure with the Town disclosing the circumstances that gave rise to the “appearance of a possible conflict” and asserted in the disclosure that she does not believe she has a conflict. Specifically, she stated that:
“My advocacy for broad-based surveillance testing could appear as advocacy for increased testing “business” for the Bedford Research Foundation clinical laboratory. This is not the case, as … [t]he Bedford Research Foundation clinical laboratory has never had, does not now have, nor is ever planning to have a financial relationship with the Town of Bedford. My advocacy for broadly-based surveillance testing stems from decades of public health experience, and my willingness to volunteer assistance in implementing appropriate testing strategies for all of Bedford’s schools, municipal employees, and residents. My advocacy does not stem, in any way, from a desire to increase SARS-CoV-2 testing income at the Bedford Research Laboratory.”
Then at the Dec. 20, 2020 meeting from the draft meeting Minutes, it is reported that another Board member requested from Town Counsel, through a Town staff person, a view on the conflict issue. From the Town Counsel, through the Town staff person, the requesting Board member reported that Town Counsel thinks that the disclosure statement Dr. Kiessling filed on December 14 with the Town Clerk’s office is insufficient to address or resolve conflict concerns. That Board Member made a motion that passed for the “BOH to refer the matter regarding Dr. Kiessling’s involvement as an elected BOH member and COVID-19 testing, protocols, policy, and discussion as it relates to her position as the Executive Director of the Bedford Research Foundation to the State’s Ethics Commission for further review and investigation.” The Board and Staff also had a discussion during the deliberation on the motion on if anyone had experience with conflict and State Ethics Board issues. No members or staff said they had experience, so there was only uncertainty on the issues. Subsequent to the Dec. 21 meeting, Town staff explained to Dr. Kiessling in writing that Town Counsel’s concerns were expressed in telephone or video conferences, not in writing. The result is that the Board Chair and Dr. Kiessling, board members elected by the voters of the Town, are left without any clear or direct view from Town Counsel.
The Board did not cite the specific conflict law Section at issue in its Nov. 30, 2020 discussion, but upon review it appears to be Section 268 subsection 6 that basically states that a covered person by the law is committing a violation if they are aware they have a financial interest (which is defined very broadly) in a matter before the Town they also participate in related to their role for the Town. Violations of this law can have serious consequences for a covered person.
While it is not entirely clear exactly to whom an elected board member should disclose and vet a potential conflict with, it is reasonable to think it might be the Chair of their Board and/or Town Counsel. Specifically, another section of the law states that if a covered person finds themselves in a possible conflict, they shall advise a responsible official of the nature and circumstances of the particular matter and make full disclosure of such financial interest, and the responsible official shall then consider and make a determination on a proper way to handle the potential conflict for the board member and the board.
Another section of the law (268 Section 22) seems to give the covered person the right to receive a formal public opinion from Town Counsel if there are detailed existing facts raising a question of actual or prospective conflict violations. The covered person also has the right under another section of the law (268B (3)(g)) to request an advisory opinion from the State Board of Ethics in order to protect themselves from potential violations if they are involved in matters where at some point the issue of a conflict comes up. All of these avenues for a covered person seemingly appear to be their rights, not anything a third-party can insist they do, and the rights are triggered if there is potential conflict resulting from a financial interest.
If, as Dr. Kiessling has publicly disclosed in an official document subject to the conflict laws, Bedford Research Foundation is not being considered for any business by the Town of Bedford and/or not seeking any business from the Town – it is not clear if any conflict issues are at all implicated.
We believe Town Counsel first and foremost works for the Town and the Town’s elected Boards and should be a direct and timely resource to assist in the resolution of this situation. We are not completely certain of the technicalities, but we believe that the conflict laws are relatively straight forward for a qualified Town Counsel. Town Counsel should be able to advise and provide direction to the Board on the practical implications of conflict law. Town Counsel should clearly and directly advise the Board if there is a legitimate issue and specifically and clearly outline for the Board exactly how the process under MGL Section 268 works, and if necessary, come to a public Board meeting and explain to the full Board and interested Town residents.
Dr. Ann Kiessling is a senior scientist with over 40 years of experience in infectious disease research. She is currently president of Bedford Research Foundation and directs its clinical laboratory, which is federally and state licensed to perform infectious disease testing, including a new SARS-CoV-2 assay developed in March 2020. The Bedford Research Foundation’s main focus is a non-profit research institution focused on HIV-disease and stem cell development. Her qualifications are a large factor in her being an elected member of the Board of Health.
This is an important matter to quickly and reasonably resolve. Right now, Dr. Kiessling, a person elected by the voters of our Town who is immensely qualified to weigh in on immediate and important matters, is effectively barred from participation in exactly the matters she was elected to be involved in. Unnecessary energy and focus on matters such are these are an unfortunate allocation of our resources. All our time, energy, and talents should be on cooperatively working on the pressing and important matters before our Community.