AYER -- Selectmen Chairman Jim Fay shot back at fellow Selectman Frank Maxant's claim that the board violated the Open Meeting Board on June 5. In his June 15 complaint to the Attorney General's Office, Maxant said the board moved "under the guise of litigation strategy" to conduct a closed-door session regarding three alleged eyesore properties.
The Open Meeting Law provides 10 instances when a public body may deliberate in executive, or closed-door, session. The June 5 selectmen meeting notice referenced two closed-door matters including one labeled "Litigation Strategy -- Properties Enforcement."
Closed-door talks under the pending litigation exemption may take place when there is "ongoing litigation" and "only if an open meeting may have a detrimental effect on the litigating position of the public body."
"There was no litigation extant. There was no litigation planned," said Maxant in his complaint. "There was no litigation threatened. No litigation or litigation strategy was discussed."
Rather, Maxant said he and the other four selectmen convened over the topic added to the agenda by Fay. Maxant said talk focused instead on "how to press an octogenarian landlord to 'invite' inspectors into his houses and decided upon aggressive zoning enforcement against a self-supporting paraplegic who recently returned home to recuperate from lengthy hospitalization."
Maxant alludes to two property owners. One is wheelchair-bound Mark Velardi, who owns
The other property owner is Maxant's landlord -- 81-year-old Hugh Ernisse. Ernisse owns homes at 14 Williams St. (where Maxant lives) and at 128 Washington St., which is located across the street from the Page Hilltop Elementary School and the Ayer-Shirley Middle-Senior High School.
Ernisse has had as tenants convicted sex offenders and drug addicts, several of whom have landed in court over the years. The FBI raided Williams Street in March 2011 in its hunt for a Level 3 sex offender who was eventually captured and extradited back to the United States from Belize. Thomas Donahue was indicted on charges of possessing, producing and distributing child pornography.
Largely in response to Ernisse's tenant population, Fall Town Meeting last October approved a restrictive bylaw prohibiting sex offenders from moving into homes within 1,000 feet of town schools, parks and senior centers, among other places. Regarding the Williams Street tenement, 30 neighbors petitioned the selectmen in March 2011 for the forced cleanup of Ernisse's yard. Ernisse appeared at an April selectmen's meeting and apologized for the condition of the property.
Some debris was disposed of at the transfer station. Some was covered with tarps. And some remains.
Building Inspector Gabe Vellante told selectmen on Jan. 10 that the town's public-way nuisance bylaw was toothless regarding private property and that numerous written warnings to landlords have gone ignored. The selectmen asked Vellante and the Board of Health to generate an estimate of the legal expenses to pursue the property owners into court.
In his complaint, Maxant said, "I believe the (OML) violation was intentional because I objected to addressing the topic in executive session, explaining why to my colleagues, who've had the same OML training. They brushed me aside."
Maxant notes in his Open Meeting Law Complaint that Fay referenced a potential conflict of interest dilemma for Maxant in participating in the deliberations over Ernisse's properties.
"The chair mentioned town counsel and conflict in a sentence suggesting I, as tenant, should recuse myself. He said nothing specific. I didn't recuse. We've had the same ethics training."
Maxant was enraged to learn at the closed-door meeting that Ernisse was approached and then granted Vellante access to inspect Ernisse's two homes. Maxant later advised Ernisse that there was no legal requirement to let Vellante in and Ernisse revoked permission.
Maxant sent notarized notice to Vellante and Town Administrator Robert Pontbriand on June 7. "I hereby assert my right to quiet enjoyment of my home and curtilage. My quiet enjoyment would be seriously impaired by the entrance of any public official or any person acting in a public capacity."
"Therefore, except for uniformed public safety officials responding to a confirmed imminently life-threatening situation, I forbid anyone, and expressly anyone holding public office or employment, or acting in a public capacity, from trespassing upon my curtilage and/or making any form of entry into my home." Curtilage is the land immediately surrounding a house or dwelling, including any closely associated buildings and structures.
"Any warrant for such as the above will be a false warrant," warned Maxant. "I will spare no effort to ensure that anyone associated in any way with such a warrant (including, but not limited to suggesting, seeking, swearing, issuing, transmitting, executing) suffers the fullest penalties therefore."
Fay: "I'll never apologize."
Fay blasted Maxant on June 19 at the beginning of the selectmen's meeting. "We have every right to go into executive session on matters we feel as appropriate," said Fay.
The conflict of interest law, as overseen by the Massachusetts Ethics Commission, bans acts that may give the appearance of split loyalties.
Town officials must consider whether their "relationships and affiliations" could prevent them from acting "fairly and objectively" when performing duties for the town.
Officials can dull a conflict-of-interest claim by filing a form disclosing a potential conflict of interest. As Maxant is elected, the Town Clerk's Office would serve as the repository for such a disclosure.
On Monday afternoon, Ayer Town Clerk John Canney confirmed that Maxant had not filed any kind of disclosure regarding Ernisse.
Fay alleged that Maxant was "further in violation" of the law by "releasing executive-session material to the press, in kind a violation of the Open Meeting Law." Fay ordered that Maxant's complaint be released to the public at the June 19 meeting.
"The Board of Selectmen has a responsibility to lead as a team member. Mr. Maxant again fails in that," said Fay. Claims the board teamed up on Ernisse as a senior citizen is "ludicrous and without merit," said Fay. To say the selectmen were "in league" with the Board of Health and building inspector is "criminal," said Fay.
Maxant sought an apology from the board. Fay refused. "A selectman who is a strong leader should never apologize for enforcing the laws of Ayer. I'll never apologize."
Fay suggested Maxant "stop pursuing his personal philosophy and goals."
Fay permitted Maxant to answer. "I'll keep it brief," said Maxant. "I reject virtually everything you said. If the majority decides to violate the law, the rest should go along?"
Maxant professed he was "very familiar with the Open Meeting Law. That very clearly violated the Open Meeting Law." Making public information from the closed-door session only "complies with the Open Meeting Law" by disclosing what should have been discussed in open session, Maxant said.
"We know we did something," said Maxant. "We knew we were violating people's rights under the law." Maxant has repeatedly asked that when the board talks about property owners, that the owners are given the opportunity to be present.
"Beware because you're judged by the company you keep," answered Fay.
"You represented that your comments represented the board," said Selectman Pauline Conley to Fay. "I agree entirely with Mr. Maxant's position at this point in time, having participated in the executive session."
"You didn't say so at the time," said Fay.
Conley agreed, "I agreed to go" into executive session but realized at the end of the deliberations that the meeting fell short of the legal exemption permitting closed door debate. "I didn't feel it appropriate afterward."
"That's a point of legal interpretation," said Fay, who knocked Maxant's constant condemnation of the effectiveness of town counsel. Fay said it's a "constant issue of Mr. Maxant's. He doesn't' think that lawyers are right to begin with."
"He isn't alone in that regard," answered Conley.