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“…no violation of the Open Meeting Law has taken place.”

By Mary E. Arata

marata@nashobapub.com

AYER — Given an extension of time in which to answer, the Ayer Board of Selectmen has filed its formal answer to Selectman Frank Maxant’s complaint against his peers. On June 15, Maxant filed a complaint with the attorney general’s office, alleging that part of the board’s June 5 closed door “executive session” meeting violated the Open Meeting Law.

There are 10 “exemptions” to the law that permit a public body, like the Ayer Board of Selectmen, to enter executive session. Via one vote at the outset of the meeting, the selectmen voted unanimously (5-0, including Maxant) to take up two matters under Open Meeting Law Exemption 3.

Maxant did not lodge his complaint against the first part of the meeting — “collective bargaining regarding the DPW union (memorandum of agreement).” Rather the minutes of the meeting, released by the selectmen on July 9, indicate that Maxant complained both during and after the second part of the meeting when “properties enforcement” was discussed.

On July 9 and upon advice of town counsel, the board voted to release the minutes of the June 5 meeting though the majority sentiment was captured succinctly by Chairman Jim Fay. “I don’t think we violated anything.”

The release of the minutes effectively succeeded in fulfilling the first of four remedies Maxant suggested to the attorney general’s office — “administer minutes of part 2 of executive session as though open and address matter in regularly scheduled meeting on cable (TV).”

Though the July 9 discussion and vote did not occur during a “regular” meeting of the board, since the special meeting was called primarily to answer Maxant’s complaint, the meeting was recorded by Ayer’s Public Access Channel (video can be viewed at www.vimeopro.com/ ayer/bos).

The three-member majority expressly rejected other suggested curative actions, refusing to issue “letters of apology” to the targeted property owners who were not invited to attend the session and who were allegedly not provided town-generated reports and records regarding the state of their properties.

“I’m not apologizing to anybody for going into executive session because I thought we did the right thing,” said Selectman Gary Luca. “I’m not apologizing to the people involved.”

“I 100-percent agree,” said Selectman Christopher Hillman.

“As do I,” said Fay.

Selectman Pauline Conley joined Maxant in agreeing that the board did violate the Open Meeting Law in convening the closed door meeting, a point raised during the meeting itself.

“At some point in the meeting, it should have clicked in our heads,” said Conley. “We’ve talked (about these properties) in open session before. We should have recognized we were not incompliance with Exemption 3.”

Hillman challenged Maxant for participating in the closed-door meeting since Maxant is a tenant of one of the targeted property owner’s properties. “The only reason you brought that up is to protect your landlord.”

Maxant lives at Hugh Ernisse’s 14 Williams St. home, though the board has also targeted complaints against the condition of Ernisse’s second Ayer home at 128 Washington St. Maxant said he was “offended” at the accusation and has steadfastly participated in deliberations and votes of the board regarding Ernisse and, in this instance, a third property located at 71 Sandy Pond Road, owned by Mark Velardi.

The board directed Town Administrator Robert Pontbriand to draft and file the board’s formal response with the attorney general’s office. The response was due within 14 days of receipt of Maxant’s complaint but Pontbriand secured an extension.

The formal response is filed

Pontbriand responded on behalf of the board in a letter dated July 26.

Maxant had claimed that Exemption 3 was improperly employed since there was no litigation in existence, planned, threatened, nor was any “litigation or litigation strategy” discussed.

The attorney general’s office February 2012 guidelines provide public bodies with guidance on how they may properly use Exemption 3 to enter closed-door session. Discussions about “ongoing litigation” or “litigation strategy” are proper behind closed doors “only if an open meeting may have a detrimental effect on the litigating position of the public body.”

Talk of “potential litigation” is “not covered by this exemption unless that litigation is clearly and imminently threatened or otherwise demonstrably likely.” Hiring an attorney to oppose the position of a public body “does not by itself mean that litigation is imminently threatened or likely.”

Pontbriand answered that the board’s opinion was that it did properly enter executive session to talk with Building Commissioner Gabe Vellante to hear Vellante’s “discussion with town counsel regarding potential enforcement action to be taken against the property owners … such action could include filing actions in court.”

The selectmen are the town’s executive body per town bylaw. As such, selectmen are “responsible for determining whether litigation should be undertaken on behalf of the town.” Vellante couldn’t have proceeded into court without first obtaining the board’s permission, Pontbriand asserted.

An open session would have compromised the selectmen’s “intentions” with respect to litigation. Vellante apprised the board of “imminent enforcement actions” and obtained “the Board’s authorization to proceed with those actions,” Pontbriand wrote.

Regarding the request for letters of apology, Pontbriand wrote “it is respectfully suggested that the proposed remedy exceeds the attorney general’s statutory and regulatory authority.

“Based upon the above information, the Board has not taken any formal remedial action, since no violation of the Open Meeting Law has taken place,” concluded Pontbriand.

Follow Mary Arata at twitter.com/maryearata and facebook.com/mary.arata.