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State orders Ayer officials to learn public records law


AYER — The Secretary of State’s Office has mandated that all Ayer town officials and employees attend public records law training in the aftermath of a public-records request into the town — and personal — email accounts of selectmen Jim Fay and Gary Luca.

Scott Houde of Ayer, a member of the Ayer Finance Committee, made the initial March 8 records request in his individual capacity. Houde sought all emails between the two selectmen and Boston developer Trinity Financial. Luca and Fay were ardent supporters of an affordable-housing project the company proposed on Devens which later failed to win Ayer and Harvard approval on March 28.

On March 23, Town Administrator Robert Pontbriand notified Houde that no such emails existed in Fay or Luca’s town or personal accounts. Houde appealed to the state the next day.

With the assistance of an attorney in the Secretary of State’s Public Records Division, another search of the town accounts yielded 22 Luca emails, but none for Fay. No evidence has been produced indicating whether any Trinity emails exist in Fay or Luca’s personal accounts.

The probe was punctuated by a statement made by Fay in a March 29 email to his fellow selectmen. “My communication between Trinity and myself was personal. (The) town administrator has any copies of my official correspondence electronic or otherwise, if there was any.”

“I keep no copies of emails,” wrote Fay. “I delete all almost daily.”

In a June 13 email to Pontbriand, Public Records Division Attorney Donald White opined that Fay “lacks a clear understanding of the public records law and the records retention requirements. This will likely be an issue raised within our final determination letter.” However, Supervisor of Records Shawn Williams wrote to Pontbriand on July 11, with a copy to Houde, that the administrative review was concluded. Neither Fay or Luca were personally admonished in the letter.

Ultimately Houde received the 22 Luca emails, which Pontbriand said were innocuous in nature. Copies of the Luca emails were not provided at the Tuesday selectmen’s meeting.

Pontbriand broke the news during meeting: the town has been ordered mandatory public records division training for “all board members, town officials, and town employees.”

“Remember,” Pontbriand warned. “All documentary materials and data, regardless of physical form or characteristics, made or received by any officer or employee of any Massachusetts governmental entity” is a public record subject to disclosure, whether through a town or personal account, when the subject matter is related to government business.

“Anything!” stressed Pontbriand, who expanded that public records include “emails, instant messages and texts.”

Pontbriand announced that a link to the public record, open meeting and conflict of interest laws, among others, now exists on the official Ayer town government website.

Pontbriand said the training date has yet to be determined. Pontbriand recommended the purchase of an archival system for emails which will store seven years worth of data.

The “c” word surfaces again

Selectman Pauline Conley drew an analogy between the split 3-2 July 23 selectmen vote to censure Town Treasurer Stephanie Gintner for allegedly deleting emails from the town email account of Assistant Treasurer Melisa Doig. Conley and selectman Frank Maxant opposed the Gintner censure.

With Fay’s admission that he deletes emails, Conley suggested some punishment befall Fay. “I don’t think censure is sufficient.”

“What do you suggest?” asked Luca.

“I’m simply suggesting this board discuss some appropriate action,” said Conley.

Luca criticized Conley for drawing an analogy between Gintner and Fay, saying Gintner was “logging and hacking into (Doig’s) email account.”

“We have an admission of a violation of the public records law by a sitting selectman,” said Conley. “I’m simply suggesting this board discus some appropriate action.” If the board doesn’t want to take a stance, “so be it,” said Conley.

“My admission was that I deleted my personal emails,” said Fay. “You cannot prove I deleted public-record documents.”

“The Secretary of State’s Office said you did,” answered Conley.

“I can destroy my personal emails,” maintained Fay. “I’ll see you in court. I’m not going to argue this. I’ve been over this for 10 years with Ms. Conley. Let’s not throw aspersions where they do not belong.”

“What a snake you are!” said Fay to Conley. “Honest to God.”

“You destroyed records,” said Maxant.

“I did not,” said Fay. “Don’t go making accusations you cannot prove.”

Fay sought a motion to adjourn the meeting. Luca made the motion but there was no second and the meeting continued.

“It was not hacking” said Maxant in defense of Gintner.

“That was unauthorized access to the computer,” said Fay.

“That person hacked into a computer account,” said Luca.

Maxant contended that, per statements made by Town Accountant Lisa Gabree, Gabree gave Gintner Doig’s Munis software password. Though Gintner steadfastly denied it, Doig and Gabree charged that Gintner guessed Doig used the same password for her email account and that Gintner sent and deleted emails from Doig’s account last August.