AYER - The Ayer Board of Selectmen voted 3-2 on Monday to reject the Open Meeting Law complaint lodged by fellow selectman Frank Maxant. During contentious debate, the majority opined that it did not violate the "Sunshine" law which limits what matters can be discussed in closed-door session.
The board also heeded advice of town counsel, and voted unanimously to release its executive session minutes from the meeting in question that took place on June 5 under the auspices of Open Meeting Law Exemption #3 which allows private deliberations for "litigation strategy". The subject of the meeting was "Properties Enforcement."
The complete board was present for the June 5 meeting. According to the minutes prepared by Town Administrator Robert Pontbriand, Maxant immediately objected to the closed door meeting.
Pontbriand briefed the board at the outset of the meeting that the selectmen had previously authorized Building Commissioner Gabe Vellante and the Board of Health to consult with town attorneys "regarding a legal strategy for enforcement of the building and health codes" for three targeted properties.
Selectmen have zeroed-in alleged town "nuisance bylaw" violations at 14 Williams Street, where Maxant resides as a tenant, and 128 Washington Street - both owned by controversial landlord Hugh Ernisse. Ernisse was jailed a week later on June 13 on unrelated charges of witness intimidation and violation of a restraining order obtained by a housemate. The third
Neither property owner was present for the meeting.
Fay "stated that in his opinion Selectman Maxant has a direct conflict of interest in these matters" and suggested Maxant recuse himself, according to the minutes.
Maxant "disagreed with being in conflict of interest and would remain." But Maxant also complained that the matter wasn't appropriate for closed door session. "There is nothing being discussed that cannot and should not be discussed in public, open session."
The record shows that selectman Pauline Conley "could see Selectman Maxant's point and concern about the Executive Session."
Ultimately, Vellante presented an "update and overview" of the Ernisse properties. Vellante said the tussle began in 1998 with five letters sent to Ernisse since, ordering the clean-up of "large amounts of junk outside in the yards that we get the complaints about."
The meeting also meandered into a discussion of building code concerns with 14 Williams Street, to which Maxant objected. Maxant stated the talk was "beyond their scope."
Vellante briefed the board about Velardi's property, reporting inappropriate materials were stored in the front yard. Promises to correct the matter have spanned six years, said Vellante according to the minutes.
A report was to be provided for the June 12 selectmen's meeting, summarizing all actions taken to date, with "prompt action" to be taken by June 19.
There are ten permitted reasons for closed door meetings of public bodies under the Open Meeting Law. Exemption #3 permits executive session for "litigation strategy." Talks relating to ongoing litigation clear the legal hurdle only if an open meeting may have a "detrimental effect on the litigating position of the public body."
Not allowed are discussions relating to "potential litigation" unless the litigation is "clearly and imminently threatened or otherwise demonstrably likely." The Attorney General's Office guidelines note that a meeting with town counsel does not automatically mean a public body may meet behind closed doors under the law.
Town attorney Mark Reich advised "I recommend that the Board of Selectmen give consideration to releasing these minutes as their release would not compromise the possible litigation" against the landowners. It was the first of four remedies Maxant suggested he wanted the board to take after the closed door meeting. The board agreed unanimously.
Other remedies suggested by Maxant were disregarded Monday night, including apologies to the land owners and an open apology to the public.
With the minutes released, selectman Chairman Jim Fay asked the board to vote on whether or not a violation occurred on June 5 for their formal response to Maxant's complaint. Fay weighed in first, "I don't think we violated anything."
A straw poll quickly revealed a 3-2 split, with Maxant and Conley maintaining the board did violate the Open Meeting Law while Fay, selectmen Gary Luca and Christopher Hillman voted no violation occurred.
Luca said "there wasn't any intent to violate the Open Meeting Law." Luca said he understood that the AG's Office was seeking revisions to the law to take the intent of board members into consideration when deciding if the law was violated.
Luca said the meeting was about "gathering the information" but that "it was clear that, going toward the end, litigation wasn't going to be necessary."
Maxant said violations of the Open Meeting Law have occurred before during his three terms on the board but admitted he had never complained about them before. "Basically, no harm, no foul."
But, on June 5, Maxant said, "What we were doing was absolutely violating other people's rights under the color of the law where there is no law to do so" and under the "cover of secrecy."
Maxant challenged his peers to recall their oath of office and to cite which laws applied in these circumstances, claiming the genesis of the debate was really aesthetics. "We're not talking about law, we were talking about opinion," said Maxant.
"That is painfully obvious," answered Fay. "You have a different read on the law."
Hillman said he agreed "100 percent" with Luca. "We went into that meeting to talk about litigation. [but] Gabe did not speak to Mr. Ernisse till that day. That was news to all of us."
The minutes reflect Vellante's meeting with Ernisse in the sixth paragraph. The Ernisse discussion stretched for a total of 30 paragraphs in the minutes.
Hillman also alleged that Maxant should have recused himself. "The only reason you brought that up is to protect your landlord."
Maxant was livid, saying he was "offended" by the accusation. "This has nothing to do with personalities," said Maxant.
"I'll pursue this until I'm no longer a selectman," pledged Hillman. "This isn't going away . Every single constituent has complained about that." Hillman alleged "the people up there can't sell their houses."
"Find me one person who can't sell their house," said Maxant.
Hillman responded that the targeted properties were "taking down the whole damn town."
"Clean up his damn yard and we won't have a problem," said Hillman.
Luca said "I'm not apologizing to anybody for going into executive session because I thought we did the right thing. I'm not apologizing to the people involved."
"I 100-percent agree," said Hillman.
"As do I," said Fay.
Conley read aloud the applicable passage of the Open Meeting Law. "Just being adverse isn't enough," Conley opined. She promised to file her own minority-view opinion with the Attorney General's Office, stating that the meeting was illegally conducted.
"At some point in the meeting, it should have clicked in our heads," said Conley. "We've talked in open session before. We should have recognized we were not in compliance with Exemption 3." She said the meeting should have adjourned.
On the board's behalf, Pontbriand sought an extension of time on July 2 for the board to formally respond to Maxant's Open Meeting Law Complaint. The Attorney General's Office responded on July 5 that a 30 day extension was granted to the Ayer Board of Selectmen allowing a response by Aug. 1.
Follow Mary Arata at Twitter.com/maryearata.