AYER -- Unless issues affecting all three Devens towns arise, the Ayer selectmen have voted to withdraw from attending regularly-convened monthly meetings of the Joint Boards of Selectmen. The move mirrors a similar move made by the Harvard Board of Selectmen in August.

Selectmen voted (4-1) on Oct. 30 to attend JBOS meetings only when issues of mutual concern arise between the towns. With Harvard's absence from regular JBOS meetings, the Ayer vote appears to defeat a three-member quorum needed for the JBOS to meet.

The Ayer vote focuses on Ayer Selectman Frank Maxant's participation in an Oct. 3 JBOS vote to move to hire an attorney to advise the JBOS. Maxant has served as Ayer's JBOS representative since last winter.

Under the most recent memorandum of understanding (MOU) between the three towns and the Devens Advisory Committee, JBOS representatives may only vote on "administrative items" without first vetting issues with their home boards.

Maxant, JBOS Chairman Tom Kinch of Devens, and Shirley JBOS representative Rico Cappucci voted 3-0 at the Oct. 3 JBOS meeting to ask Shirley attorney Ernest Hyde "to appear" at its next meeting. On Oct. 25, Hyde not only appeared but presented the JBOS with his opinion letter.

On Oct. 25, Kinch confirmed that Hyde was retained and would be paid $600 to $700. Hyde outlined his legal opinion on the JBOS's regional role. The move didn't sit well with most of the Ayer selectmen.


"Legal counsel was never discussed by this board," said Conley. "I don't know how JBOS had the legal authority to hire legal counsel. I don't understand the need for JBOS to have an attorney, but even if they do, that's an issue for the boards, not JBOS."

"I tried to talk to Frank (Maxant)," said Conley. "I don't think he liked the question too much." Conley said a JBOS representative must vote the will of their town board and "not from their own initiative.

"The expenditure of legal funds is not within the scope" of JBOS authority, said selectmen Chairman Jim Fay. "Absent a vote of this board to expend funds, other than payroll support for the administrative assistant, we have to tell our accountant to hold funds. The vote is in question."

Fay demanded an explanation on "where they (JBOS representatives) felt this vote was going when it wasn't a vote they were authorized to take." The Ayer, Harvard and Shirley selectmen were not asked to vote on the need for hiring a JBOS attorney before Hyde began work.

"Who did they interview before Hyde?" asked Conley. Conley said it appeared the JBOS hired "the only attorney they talked about, spoke to, and who prepared a report to the JBOS, which we don't even have?"

Fay challenged the need for a JBOS attorney. "I already know my authority," said Fay, who served as JBOS chairman before Kinch.

"The Devens Committee is a welcome member but not a charter member of the original JBOS incorporation," blasted Fay. "There are a lot of questions here. Who's really pushing the authority question?"

In June, Ayer selectmen refused to join in a JBOS-initiated, state-financed contract with the Montachusett Regional Planning Council to map prime development and preservation areas within the Devens Regional Enterprise Zone. Fay ripped the move in June as "wasting taxpayer money."

But at least that MRPC contract came to the Ayer board for a vote, noted Selectman Gary Luca.

The sum of $47,000 remains in the JBOS coffers, from an original state allotment of $250,000. Most was spent to study a failed proposal on the disposition of the former Fort Devens Army base. JBOS funds are administered by the town of Ayer.

"I'd like to further see exactly why we're doing it, to what extent," said Luca of the move to hire an attorney. "I might not even agree to spend the money for that reason." But Luca said the local boards should "take a vote accordingly."

"This money has no effect whatsoever on our town budget," argued Maxant. "The funds were left over following the huge grant that was given to JBOS."

Maxant said Hyde was retained to help "define the relationship" among the stakeholder communities, MassDevelopment which manages Devens and promotes its build-out for the Commonwealth of Massachusetts, and the Devens Enterprise Commission land-use board. 

Hiring an attorney "doesn't affect the town opinion or authority," said Maxant. He said hiring an attorney was "totally internal to JBOS. I don't agree it needs to go back to the towns to vote."

Fay disagreed, stating that Maxant's vote to hire Hyde is "null and void" without a vote of the Ayer selectmen.

The MOU states that JBOS representatives may vote on "administrative items" like "approving meeting minutes" without clearing the issues with their host boards.

"Not the expenditure of money," said Fay.

Fay asked Town Administrator Robert Pontbriand to ascertain whether Ayer may withhold payment to Hyde since Maxant participated in the JBOS move to hire an attorney without first passing the idea past the entire Ayer Board of Selectmen.

Shirley and Harvard selectmen "have pretty much opted not to participate in the everyday activities of the JBOS," said Conley. "I'm not suggesting we formally withdraw. Just take a step back as Harvard has and as the Shirley Board of Selectmen has."

Stating the JBOS is a waste of their time, Shirley selectmen have tapped a former town selectman to attend JBOS meetings in their stead. Harvard has not sent a representative to JBOS meetings for months.

"Notify them that we will not participating in regular monthly meetings," suggested Conley. She added that the current JBOS panel is "getting far afield" from its intended purpose.

When there's a "specific topic, then we'll send a representative to gather information," said Conley. "Mr. Maxant -- or whoever our rep shall be -- will not be a voting member of the JBOS at their weekly meetings. Therefore they won't have a quorum."

Maxant objected, arguing that MassDevelopment wanted "a completely free hand" regarding Devens management. "They have gotten away with alot of it to our harm."

"To the people in Boston who obviously have their own plan to create a new town, this will be bringing smiles of glee to their faces I'm sure," said Maxant. Maxant called the move a "very huge mistake. ... The timing couldn't be much worse."

"I admire his diligence," said Conley of Maxant's penchant for dogging MassDevelopment. "I'm not suggesting Maxant not pursue MassDevelopment. I just don't want him doing it as a representative of this board."

Selectmen voted 4-1 to withdraw from regular JBOS attendance until issues arise that concern the three towns. The board also voted 4-1 to withhold payment to Hyde. Maxant dissented in each vote.