AYER — The selectmen’s meeting of April 27 was significant in two ways.
It was the first meeting of the reorganized membership. Cornelius Sullivan was replaced by Frank Maxant, who returned for a three-year term. The meeting was also marked by a vigorous debate on the legal merits of whether the meeting with foreclosed property owner Ralph McNiff, of Westford Road, should take place in open session or behind closed doors.
There’s a list of nine exemptions that permit closed-door meetings under law. The law also requires the correct explanation or exemption, and be stated and posted in advance of the meeting (except in an emergency). One reason was given and challenged by a selectman, while it appeared another exemption was the more appropriate fit.
Maxant pressed for the doors to remain open during a talk with McNiff. But Interim Town Administrator Jeff Ritter advised that McNiff express, before the meeting began, that he’d prefer to talk to selectmen in private regarding the town’s tax-taking of his property Feb. 16.
Ritter hung his hat on Open Meeting Law Exemption No. 6, recorded in the minutes of the meeting. Exemption No. 6 permits closed-door deliberation by a public board “to consider the purchase, exchange, lease or value of real property.”
Maxant argued otherwise and read into the record the rest of the Exemption No. 6 language that he said trumped any closed-door deliberation. Maxant said the McNiff meeting could not have had a “detrimental effect on the negotiation position of the governmental body” since the town already owned the land via the tax-taking.
In the meeting minutes, it was recorded that Ritter “stated his assurance re: Board’s ability to enter into Executive Session re(garding) protecting individuals’ personal information disclosure…” It’s language that doesn’t seem to reflect the legal grounds for executive session regarding Exemption No. 6 .
The closest Open Meeting Law language that would permit such a closed-door meeting then is not Exemption No. 6 but Exemption No. 1, which reads in part:
“(1) To discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual…”
Ritter also advised that McNiff wanted the closed-door discussion (which Exemption No. 1 permits) and that the selectmen could also request McNiff leave the room during their closed-door deliberations. This is something that Exemption No. 1 does not overtly suggest is permissible.
Exemption No. 1 states that the individual, who is the subject of a closed-door meeting, has the right to be present throughout the meeting, since the topic of the discussion is the individual himself. McNiff should not have been asked to leave the room, as the minutes of the Executive Session portion of the meeting revealed.
In addition, the individual has the right to have a representative present to advise him or her but not speak during the meeting. McNiff apparently appeared before selectmen alone.
The Open Meeting Law outlines these details regarding Exemption No. 1:
“If an executive session is held, such individual shall have the following rights:
i. To be present at such executive session during deliberations which involve that individual;
ii. To have counsel or a representative of his own choosing present and attending for the purpose of advising the individual and not for the purpose of active participation in the executive session;
iii. To speak on his own behalf…
The exercise or non-exercise of the individual rights under this section shall not be construed as a waiver of any rights of the individual.”
The selectmen voted 4-1, with Maxant dissenting, to enter into the closed-door meeting with McNiff.
Over the past couple of months, the selectmen had deliberated about McNiff’s ongoing occupancy of the property and whether they need to institute immediate eviction proceedings in court.