AYER -- A disagreement broke out at the Jan. 22 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, selectmen Chairman 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. Pontbriand granted that access on Jan. 24 in an email copied to Kesten.
"Since Selectman Maxant publicly mentioned attorney Kesten and attempted to publicly 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 minutes and recordings of Ayer selectmen's closed-door meetings regarding the just-concluded federal civil action titled King v. Ayer.
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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.
Maxant continued, stating that Kesten suggested that the SORB definition of a sex offender was overly broad and could include nonviolent 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 asked Pontbriand if he'd brought recordings of the board's closed-door meetings with him. Pontbriand answered that he had the meeting minutes only. "I asked you to bring (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 (the bylaw) down and rewrite it?"
"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."
Maxant 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 in writing.
Regarding the Kings' 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."