AYER -Following months of closed door meetings, on July 16 the Ayer Board of Selectmen voted 3-2 to censure Ayer Town Treasurer Stephanie Gintner.
Gintner held the right, under the Open Meeting Law, to keep the process behind closed doors since the selectmen's proceedings were focused on "complaints brought against a public official". The selectmen have held multiple closed-door meetings to address complaints lodged last fall against Gintner by her subordinate, Assistant Treasurer Melisa Doig, and Town Accountant Lisa Gabree.
Purely symbolic, the selectmen have no power to discipline the separately-elected Treasurer.
Doig claimed Gintner violated the town's 1999 email policy by accessing Doig's computer and email account on Aug. 23 while Doig was on vacation and allegedly deleting 15 of Doig's emails.
Gabree claimed Gintner "breached her trust" by requesting Doig's Munis computer program password. Gabree admitted giving Ginter the password. Doig stated she'd used the same password for her email account.
Gintner denied accessing Doig's email but admitted using Doig's Munis account. "I did not know why I did that," said Gintner. "It was not good judgment on my part."
Gintner said she generated a payroll account on Doig's computer, but then faxed the report to the bank. An electronic paper trail, vis-à-vis hard copies of emails, suggests Gintner emailed the report to the bank from Doig's account on Aug. 23.
Upon her return
Town Administrator Robert Pontbriand investigated the complaints and issued a Sept. 2011 memo finding that email policy breaches occurred but did not violate the state Public Record Law nor necessitate notification to the Department of Revenue. Pontbriand suggested the selectmen could consider censuring Gintner if desired.
Town counsel David Jenkins used Pontbriand's memo to draft a 33-point "Findings of Fact" which painted a picture of Gintner's culpability for the board's consideration and was handed to all parties for the first time at the meeting.
The meeting was recorded by Ayer Public Access Channel and can be viewed at http://vimeopro.com/ayer/bos
Gintner was represented by her attorney Daniel Gelb; Doig was represented by her attorney Peter Nicosia; Gabree represented herself.
Selectman Pauline Conley first sought copies of minutes from prior meetings. "It's incumbent on us to have a complete record, which we do not have."
"All the facts have been gathered to my satisfaction," said Chairman Jim Fay. "I am certainly prepared to render a final opinion."
The board voted to accept each 'fact' as "more probable than not"- the civil law standard which Jenkins said applied versus the criminal standard "beyond a reasonable doubt". Jenkins advised that circumstantial evidence was sufficient to make fact findings despite the lack of direct evidence of any wrongdoing by Gintner.
Reading from the email policy, Gelb said employees were to have "no expectation of privacy in their use of email" and that "The Town of Ayer reserves the right to monitor emails/Internet usage including content." Gelb said such monitoring could be performed by Gintner as a department head and part of Doig's "chain of command."
Nicosia disagreed, saying only the selectmen can authorize email monitoring on behalf of the Town of Ayer. "You are the chief executive officers of this municipal corporation."
"Thank you for your opinion. I don't agree with you," said Conley to Nicosia, noting that the Treasurer is separately elected, a statutory post, and free from selectmen oversight.
There was debate on whether Doig was, in fact, appointed as Assistant Treasurer. "I call her the Assistant Treasurer because that's what she was when I got here," said Gintner. Doig said she'd produce for the board her letter of appointment from former Treasurer John Horgan.
Luca asked why Gintner requested Doig's Munis password. "She didn't really give a reason," said Gabree. "I just assumed she needed to get the payroll to the bank and possibly that one step she couldn't do without getting onto Melissa's computer...that's what I had assumed and I certainly didn't want to hold up payroll."
"I really didn't think I knew the password because the last I knew Melisa was going to have Cindy change the password," said Gabree. "The one I was guessing at when I told the elected official - who has more authority than I do - we didn't have a full IT policy in place that would have protected me - so I gave her [Gintner] what I knew to be her [Doig's] old one [password] -- specifically for Munis purposes only." Pontbriand confirmed that only Gabree and Knox have full access to the Munis passwords.
Gabree bristled when Gelb suggested Gabree "voluntarily" provided Doig's passwords.
"I don't expect you were under duress, where you Lisa?" asked Fay.
"I considered my options and found no protection for me," answered Gabree. "Only because of the time limits of payroll - yes - and the fact that we did not have a policy in place at the time that would protect me from the demands of an elected official."
Conley said that under the old policy a department head "would have access to the password - I mean it's implied. Does anyone dispute that?"
Luca mocked the notion, telling Pontbriand, "Ah, Robert can I have your email passwords please so I can monitor your emails? I want to check them all tomorrow."
Still, Conley said "an elected official stands equal as any other elected official," stating "nobody can tell them 'no' under the 1999 policy."
Fay said the matter wasn't one of invasion of privacy. "There was a matter of destruction of public records."
"Does that mean you can pick and choose which part of the policy" to follow, asked Gintner.
"For me the issue is did you violate an email policy? And if so, where did you violate the policy?" said Fay. "I don't see a violation of the expectation of privacy."
If the bank email shows Gintner signed the email in the text, then Doig's identity wasn't used without authorization, said Gelb.
Fay said the issue was, "Did you use Doig's password to access her computer?' The answer is yes so it's not in dispute."
--CIRCUMSTANTIAL v. DIRECT EVIDENCE
Gelb asked if the emails still exist electronically. Yes, said Pontbriand. However, Conley noted the selectmen did not view the emails first hand, and were relying exclusively on Pontbriand's Sept. 16 memo, having not met with Knox on the topic.
Conley pressed Fay, reciting verbatim five different sentences Fay allegedly uttered at the board's closed-door June 12 meeting in which Fay asserted there was no evidence of email destruction, breach of trust, or violation of law.
Gelb scrambled for his transcript of the meeting. "I remember you saying that," said Gintner.
Nicosia suggested that Conley was taking Fay's comments "out of context There'd never been a vote of the board before on the findings of fact. Tonight is the night for that"
"Regardless of what the record shows, that's exactly my position," said Fay. "I have made no formal decision on the matter - yet."
"There is a probability that she may have done it. But that's to the extent that I can say it. It's probable that she did it," said Fay. "But there is no physical evidence- then or now - that she did so I'm not going to decide on that point."
Maxant objected to the process as an "attempt by the selectmen to grab power over the town's finances by doing anything we can to discredit our elected treasurer it's an illegitimate thing to be doing so I'm going to be voting 'no."
"We're responding to Ms Gabree's complaint," countered Hillman. "It's not something the board has conjured up."
"I'm not sure how someone can make a determination based strictly on guesswork," said Gelb. "It would be pretty scary if the judicial system rested on that."
"We don't need a videotape of Ms Gintner coming in red-handed with the computer to make a finding," answered Nicosia, who said there was 'weighty" circumstantial evidence to finger Gintner.
Gelb objected to the town's refusal to allow Gintner to bring in an independent IT expert to investigate Doig's computer. Gelb said a study could have confirmed which IP address was used to send the emails and the timeframe when the alleged emails were deleted.
"I have reason to believe there may have been other emails that - quote - disappeared," in the same timeframe, said Conley. Conley said correspondence from Pontbriand shows he, too, had email difficulty at that time.
"We've been talking about this for 10 months," said Doig with exasperation. "[It] seems ludicrous that this is just coming up now" especially if it was 'someone as high profile" as Pontbriand.
"I've been waiting for this debate over findings of fact to raise the issue," said Conley. "We're talking about circumstantial evidence and probable cause."
The board voted that Gintner violated the town's email policy on a 3-1 vote with Conley opposed and Maxant abstaining.
The board voted 4-0 to add a 34th finding to specifically address Gabree's breach of trust claim, though Jenkins advised that he was "unable to find a specific policy on breach of trust." Maxant did not participate in that vote.
Fay encouraged the board to censure Gintner. Not doing so would "be a failure on our part," said Fay.
Jenkins advised the board would be within its right to "express its opinion," but added the board "cannot impose any real discipline". Jenkins said the word censure is "a term of art that's used in this sort of a situation."
Maxant recalled a selectmen vote to censure him during a prior term. "It gave them the opportunity to vent and it had no effect at all."
"I had a similar vote at one time," said Conley. "That's your contemporaries saying they didn't appreciate what we did."
The selectmen approved both the Findings of Fact and separately voted to censure Gintner on votes of 3-2 (with Conley and Maxant opposed each time).
Doig and Gabree agreed they found the board's actions were satisfactory and agreed to close their complaints.
--THE "VERY UNIQUE REQUEST"
Pontbriand said Doig has requested 'only she, and of course I, have access" to Doig's office. Pontbriand acknowledged it was a "very unique request" and a "very gray area" though Pontbriand manages Town Hall space.
"How you do that is how you do that," said Fay. "That's why we pay you the big bucks."
"I don't make calls at this level," appealed Pontbriand.
"But you now supervise Melisa," said Fay. "Whatever you do is fine with me."
Luca asked Gintner what she needed to access in Doig's office. "Everything in that office," answered Gintner. "Everything in the treasurer's office, I have access to. Legally I have a right to everything in that office."
"For reasons I don't know", former Town Administrator Shaun Suhoski shifted sensitive personnel records from the selectmen's- to the Treasurer's office. "Let's relocate them to our office," suggested Conley. "That way Robert can give access to whoever needs access."
Nicosia suggested Pontbriand take control of Doig's office "when Melisa is not in the building or not in the office. That is our larger concern."
If Doig needed separate workspace, "so be it" said Fay. "Allow Ms. Doig the reassurance that my workplace is safe and secure and not been tampered with in my absence. Minimize that uncomfortable feeling that seems to exist at times during your supervisor/subordinate relationship."
"To me it's completely unprecedented and unheard of - I can't imagine that happening anywhere," said Maxant, a Navy veteran, to Fay. "I can't image you'd had that experience in the Army Are you saying your officers wouldn't have had access to all the things that you had access to in the function of your job?"
Conley chided her peers, "to restrict the Treasurer from the Treasurer's Department is the most insidious thing this board could do." But she suggested relocating Doig to Gabree's office temporarily. "There is an election next year," said Conley. "[But] if Ms Gintner runs again and is reelected, I suppose this will continue into perpetuity until one of them leaves the Town of Ayer's employment and therefore we'll have to handle it on a more permanent basis."
Gintner revealed that she's under orders not to enter Gabree's office. "I have to do everything by email or leave it in her interoffice mail." She wondered how she'd work with Doig if she's relocated elsewhere in the building.
When Doig said she had a lot of "privacy issues," Conley shot back. "OK, you know we can complain about everything until the day is done."
"Hey, it's your department. Work it out amongst yourselves," Maxant suggested. "Then suddenly we stop enabling it."
"This goes for Stephanie too - we have to make all our employees comfortable," said Hillman.
"Or we have to draw a line in the sand at some point," said Conley.
"Exactly," said Hillman.
Conley requested the compilation of all meeting minutes, "so that all the questions, all the supposition, innuendo, all of the everything can stop."
Follow Mary Arata at twitter.com/maryearata and Facebook.com/mary.arata.