AYER -- Planning Board members have responded to four Open Meeting Law complaints filed by member Jeremy Callahan, denying that any violations occurred but acknowledging the complaints and authorizing town counsel to craft a response.
Town counsel Mark Reich said he will draft a response to the Attorney General's office stating that the board does not feel it has violated the Open Meeting Law. But in the 90-minute meeting Reich advised the board on motions to make as a precaution for any alleged wrongdoing.
The first complaint regards Chairman Morris Babcock's refusal to put Callahan's request to relocate meetings on the agenda.
Callahan currently has a harassment prevention order against him by Planning Board administrator Susan Sullivan, and is not allowed within 10 yards of her. He is only allowed to be in Town Hall between the hours of 8:40 a.m. and 4:30 p.m., rendering him unable to attend board meetings typically held in the evening.
The order stems from an alleged verbal altercation between the two, who had been battling over meeting minutes from previous years that Callahan had requested.
The complaint claims Babcock made statements suggesting that the additional agenda item was deliberated outside the meeting.
Reich said the chair of the board determines what goes on the agenda. He said it was his understanding that Babcock alone made a determination for that item not to appear on the agenda.
He also said the complaint was filed more than 30 days after the alleged incident, the deadline given to file a complaint with a public body under the Open Meeting Law.
Babcock said it was his decision at that time that the board was not prepared to discuss Callahan's request.
"At the end of the day there was no deliberation. It was my decision to keep it off the agenda that evening," he said.
Under Reich's advisement, the board voted to ratify Babcock's decision not to include the request on the agenda.
The second complaint related to a May 24 letter Babcock sent to Callahan in response to a few requests, including potential agenda items. The complaint claims the letter's use of the pronoun "we" indicates a deliberation that took place outside an open meeting. It also claims the letter is a deliberation because it copied the letter to all board members.
The letter denied Callahan's request to relocate meetings to the police station.
In response to Callahan's possible participation through remote technology, Babcock wrote in the letter that "unfortunately we cannot, at this time, provide this type of authorization."
"The administrator is present at the meeting and therefore your communication at the meeting, the Planning Board feels, is a violation of the court-ordered restriction," the letter reads.
Reich suggested that the board ratify the statements Babcock made in the letter, ratify Babcock's action not to include the requests on the agenda, and append the letter to the minutes of the current meeting. The board approved.
Babcock said the letter was written by him.
"In my job I say 'we' every day because we work as a team in my job," he said. "This letter was written by me. It was not written after deliberation with any of the members of this board."
The third complaint describes a meeting June 2 that Callahan writes was held "behind closed doors." The complaint also claims that the board did not follow the appropriate steps to enter into executive session.
Babcock read the minutes of the meeting in open session, reflecting that all members voted to enter into executive session.
Reich suggested the board release the minutes of that executive session because they indicate that no action was taken.
Babcock also read the executive session minutes, which revealed that members discussed Sullivan's employment and annual performance reviews.
"We just wanted to understand what the complaints were from at Town Meeting, (and) do we need to address them," Babcock said.
The board voted to modify the June 2 agenda so that it notes that the board met in open session and voted on convening in executive session. They also voted to append a copy of the current meeting's minutes to the June 2 meeting and release the executive session minutes.
Reich said revising the agenda after the fact is just to clarify for the public record, making clear that the board first met in open session to consider going into executive session.
The fourth complaint claims the Planning Board's appearance at the June 3 selectmen's meeting was a violation because it was a deliberation of a quorum of the board that was not properly posted.
Reich suggested appending the minutes of the selectmen's meeting to the minutes of the current meeting. He also suggested that the Planning Board be able to comment about any comments made at the selectmen's meeting that could be seen as a decision of the Planning Board.
Babcock said he went to the meeting because he wanted to make sure selectmen understood where the board was with the recent budget elimination.
The rest of the board indicated that there was no group action or pre-planned decision to attend the selectmen's meeting. Lucchesi said he went as an individual, and member Rick Roper said "it wasn't a pre-planned thing."
Member Kyle Gordon said the other three members came up to the table to show support as individuals, not as a group.
The board then went over a few of Callahan's requests, including relocating to the Ayer police station for meetings so that he can attend.
The board decided to stay in Town Hall for meetings, reiterating the need for Sullivan to be present for informational purposes. For Callahan to attend meetings outside Town Hall, he still needs to remain a certain distance from Sullivan.
"We need our secretary and to eliminate her is self-defeating," said member Rick Roper.
The board set aside his other requests, including a citizen subcommittee to work on the zoning bylaw and an email policy for board members, as agenda items for future meetings.
Callahan said he is not surprised the board is claiming there is no violation, but is happy the board addressed his complaints.
"It all sounds like a good thing," he said.
Meanwhile, he said their decision not to relocate meetings is a moot point.
"Within a month I'll have the legal issue resolved and also Susan Sullivan won't be employed with the town, and I think both of those two things will resolve my issues," he said.
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