AYER - A disagreement broke out at the Jan. 22 Ayer selectmen's meeting regarding what an attorney did or did not advise the board regarding the constitutionality of Ayer's new sex offender residency bylaw which restricts where Level 2 and 3 sex offenders may live in town.
Selectman Frank Maxant said attorney Leonard Kesten told the board that the bylaw was weak in two regards and suggested amendments to strengthen it. The notion seemed to catch the other four selectmen by surprise- none of the other four heard such advice, they said.
The following day, selectman Chair Jim Fay directed Town Administrator Robert Pontbriand to ask Nashoba Publishing to "accurately report what legal advice was provided" to the board.
"The public has been mis-informed in my opinion as to how selectman Maxant represented what the legal advice was regarding the Sex Offender Bylaw," said Fay in a Jan. 23 email to Pontbriand forwarded to the newspaper. "To my knowledge the Bylaw has never been characterized as unconstitutional."
Nashoba Publishing asked for access to (or any legal advisories written by) Kesten. Ayer Town Administrator Robert Pontbriand granted that access on Jan. 24 in an email copied to Kesten.
"Since Selectman Maxant publicly mentioned Attorney Kesten and attempted to publically state what Attorney Kesten said (in Frank's opinion) I would authorize you to contact him for comment and for what he actually said and for accuracy," wrote Pontbriand.
Nashoba Publishing asked for comment from Kesten on Jan. 28. By day's end on Jan. 29, no response was received from Kesten.
On Monday, Nashoba Publishing also requested Pontbriand release of minutes and recordings of the Ayer selectmen's closed-door meetings regarding the just-concluded federal civil action titled King v. Ayer. The Open Meeting Law states that minutes to executive session meetings are to be released once the underlying subject matter of the meeting has concluded. Pontbriand stated at the Jan. 22 meeting that the case was closed.
-- KING V. AYER
Husband and wife John and Ashley King sued the town and Ayer Police Chief William Murray in September alleging violation of their civil rights and that the town bylaw was unconstitutional.
Married in March 2012, the Kings claimed that Murray tried to stall John King, who visited the Ayer Police on April 19, 2012 to register his new residence at Ashley King's home at 6 Whitcomb Avenue. State law requires offenders to notify local police departments of their intention to live or work in a Massachusetts community.
John King was convicted of rape in 2001 and was originally classified as a Level 2 sex offender (at moderate risk of re-offense) as defined by the Sex Offender Registry Board (SORB). Following a subsequent incarceration for a non-sex based crime during his probationary period, the SORB bumped King's threat level up Level 3.
Murray testified that, the day after King's visit to the department, he learned that a new bylaw was pending but not yet on the books. Ayer Town Meeting approved a bylaw in Oct. 2011 which prevents Level 2 and 3 offenders from establishing residence within 1,000 feet of public parks, schools and senior housing complexes. Ashley King's Whitcomb Avenue home is located within 1,000 feet of both Pirone Park and the Park Street senior housing project.
The Kings alleged that Murray stalled while lobbying the selectmen and Town Clerk John Canney to complete the process needed to activate the bylaw. Canney completed the process on April 24 by posting the bylaw in five public places. On April 25, Murray advised King that the bylaw prevented King from living at 6 Whitcomb Avenue.
In a ruling specific to 6 Whitcomb Avenue, U.S. Dist. Court Judge William Young ruled on Dec. 20 that King had, in fact, properly registered under state law on April 19 and ordered King be allowed to live at his wife's home immediately. Young specifically dismissed as moot the King's separate claim that the bylaw was unconstitutional.
No financial damages were awarded to the Kings, nor was the town or Murray specifically admonished in the judge's order.
-- HE SAID, THEY SAID....
Towards meeting's end on Jan. 22, Maxant said 'it's good news that we won the lawsuit but we still have this bylaw that's unconstitutional." Maxant said Kesten advised "yes, the bylaw is unconstitutional" and that Kesten "gave us two very clear black and white reasons" why they Ayer bylaw is susceptible to constitutional challenge.
"The plaintiffs hammered away time and time again," said Maxant. "Our lawyer agrees."
Maxant said the bylaw needed amendment "to remove the objections. By defining the weak points, he's given us a roadmap for strengthening it." Maxant suggested bylaw tweaks be presented to Town Meeting voters.
"I think I must have selective hearing," said Fay. Selectmen Christopher Hillman, Pauline Conley and Gary Luca all agreed that they, too, had not heard Kesten give that advice.
"He gave two reasons," continued Maxant.
"I don't know who he gave them to," answered Fay.
"He said the bylaw is too broad in its definition of a sexual offender," said Maxant.
Luca wondered if the subject matter was still subject to executive session cover under the Open Meeting Law and was not to be discussed publically. "Not anymore," said Pontbriand.
Maxant continued, stating that Kesten suggested that the SORB definition of a sex offender was overly broad and could include non-violent streakers, exhibitionists, and "those urinating in public." Maxant said Kesten advised against adhering to the SORB definitions when labeling offenders "when they're really not of harm to anybody."
Maxant said Kesten advised the bylaw should be constructed to clearly identify the "certain population" the bylaw aims to protect. If the goal is to protect children, then Maxant said Kesten advised the bylaw must be "specific to pedophiles." If the goal is to protect the elderly, specific language is needed in that regard.
"He made these points very clear," said Maxant.
Maxant asked Pontbriand if he'd brought recordings of the board's closed door meetings with him. "Do you have it?"
Pontbriand answered that he had the meeting minutes only. "I asked you to bring them [the recordings] because I anticipated this selective hearing," said Maxant.
"There are five of us," said Fay. "Four of us didn't hear it."
"Actually five of us," said Conley, in reference to Pontbriand who was also apparently present for the executive session board meetings. "Do you want to strike it [the bylaw] down and rewrite it?"
"No, no, no," answered Maxant.
"You're saying the judge said it was unconstitutional?" asked Fay.
"No," said Maxant. "It [the trial] was in two phases."
"I know how the law works," answered Fay.
Maxant explained the judge ruled that King was registered under state law, and so there was no need for the court to entertain the Kings' constitutional challenge of the bylaw.
"Then it must be a good bylaw," said Fay.
"One lawyer's opinion does not make a bylaw unconstitutional," said Conley. "The attorney did not say it was unconstitutional. He said it was extremely restrictive, which is what the voters wanted."
"We all have our own opinions," said Conley. "Mr. Maxant has a strong opinion but he's the only one I've heard from who is opposed to this bylaw."
Maxant denied that was the case, but warned "It will get us a huge loss in court."
"Mr. Maxant may feel it's unconstitutional, but he's not a judge or a jury," said Conley, who then suggested the discussion end. Conley suggested Maxant present any draft bylaw amendments it in writing.
"I'm proud of this town," said Hillman. Though not yet on the board when the bylaw was approved by Town Meeting, Hillman said "as a parent, I think it's fantastic."
Hillman said he's heard out-of-town feedback who said Ayer voters "should be proud" of the bylaw in that the town took proactive steps to act "before something happened."
Regarding the King's suit and the timing of the bylaw's effective date, Hillman said "It was a perfect storm of things coming together. I'm not going to elaborate...we know."
"This was first pass out of the gate," said Fay. "We knew there could be challenges down the road. It hasn't gotten challenged yet. The judge didn't strike it down."
Follow Mary Arata at twitter.com/maryearata.