AYER - The selectmen voted unanimously on Tuesday to settle a grievance brought against the town by Planning Board secretary Susan Sullivan and her union - AFSCME Council 93. The agreement flowed out of a morning closed-door arbitration hearing at Town Hall.
Town Administrator Robert Pontbriand reported that Sullivan has claimed Town Hall is not a "safe environment" for her in the wake of a widely-reported incident last fall between herself and Planning Board member Jeremy Callahan.
The settlement statement states that the town would post notification in Town Hall of a harassment prevention order Sullivan obtained against Callahan on Nov. 17. The temporary order was extended for a year on Nov. 23 by Leominster District Court Judge Mark Noonan.
The posting fulfills a request Sullivan originally last fall which was denied. Sullivan, who doubles as the president of the secretary's union, sought Pontbriand's assistance in spreading the word to her fellow Town Hall employees about the then-temporary stay-away order.
On Nov. 22, Pontbriand informed Sullivan that he shared the opinion of the town's attorneys that there would be no official notification circulated by the town due to privacy concerns for both Sullivan and Callahan. Sullivan disagreed with the official position and stated public safety concerns for herself and her coworkers should trump privacy concerns.
The location for the posting was not announced. The text, recast from the judge's order
"You are ordered to remain away from Susan Sullivan' workplace located at Ayer Town Hall, 1 Main Street, Ayer, MA 01432 at any time but you may go to Town Hall only for Planning Board purposes and to allow presence in the Town Hall for personal business, you are not to be within 10 yards of Susan Sullivan or go to the Third Floor at all. Any Planning Board information needed by Jeremy Callahan may be requested through the Planning Board Chair and delivered at a place other than Town Hall."
The settlement agreement also states that Planning Board Chair Mark Fermanian "shall accompany Susan Sullivan while she secures Town Hall after Planning Board Meetings and to escort her to her automobile." Pontbriand indicated that he and selectman Chair Jim Fay spoke with Fermanian after the morning arbitration hearing and Fermanian agreed to the request. It was stated that due to a conflict with his work schedule, Fermanian could not attend the morning arbitration hearing.
AFSCME Local 93 attorney Karen Clements signed the agreement, as did Sullivan. Fay signed the settlement on behalf of the Town after the selectmen's unanimous closed door, then open meeting, vote to enter the agreement.
No member of the Planning Board attended either the arbitration hearing or the evening selectmen's meeting. Initially invited to attend, Callahan himself could not attend the morning hearing due to the stay-away order.
The harassment prevention order expires on Nov. 30, 2012 at 9 a.m.
--CALLAHAN: "I WOULD LIKE TO ATTEND"
A projection screen set up in the selectmen's meeting room Tuesday morning revealed the arbitration participants would be viewing Callahan's three YouTube videos he produced using APAC videotape of Planning Board meetings.
In court last December, Sullivan asked the judge if the harassment prevention order could prevent Callahan from "talking about me on a website." Callahan had posted links to the YouTube videos via the Ayer Yahoo Group venue.
Noonan stopped short of extending the harassment prevention order into cyberspace. "To some degree he has a right to speak," said Noonan on Nov. 23. Any cyber commentary that is tantamount to "abuse or harassment can arise to a criminal offense" and is "ill advised," Noonan warned.
Callahan's YouTube trilogy entitled "How the Planning Board Works" remains online today.
Nashoba Publishing was informed by the attorneys present that the morning proceeding was not open to the public. A videographer appearing on Callahan's behalf was likewise advised to remove his camera and vacate the meeting room before the door closed. Timothy Bornstein of the American Arbitration Association conducted the hearing.
Callahan was initially advised by Pontbriand via email on Sept. 6 that he had the right to be present for the arbitration hearing. Pontbriand wrote "I have been advised by Town Counsel that you have a right to attend and participate in this Arbitration Hearing as it does involve/pertain to you." Pontbriand's email was copied to Fay, Fermanian, Jenkins and another town attorney Mark Reich.
"My attendance at this hearing would be a violation of the restrictions placed upon me by the harassment prevention order," answered Callahan. "It is not clear to me that I can attend this hearing without a release from these restrictions by Susan Sullivan.
"I would like to attend, but I do feel there needs to be some clarification on this issue," said Callahan. "Given past experience, I suspect Ms. Sullivan would choose that I not be resent. If this is the case, I cannot attend." Callahan offered instead to offer a written statement for the arbitrator's consideration.
"I came to the same conclusion as Jeremy and I share his concerns," wrote Jenkins. "The bottom line for me is that we will not put Jeremy at risk."
Jenkins suggested two approaches. First, in a move that was not adopted Tuesday, Jenkins suggested "that the arbitration be transferred to the police department conference room. Under that scenario, Jeremy would be required not to be within 10 yards of Ms. Sullivan."
The second approach suggested was to open testimony on Tuesday but continue the arbitration hearing to a date in December "after the expiration of the original order and assuming the order is not extended" allowing Callahan to testify three months later.
"I prefer the second course of action," advised Jenkins. Pontbriand agreed, "We should proceed in that manner." With Tuesday's settlement agreement, there will be no need for a hearing continuation.
"As I have attempted to do all along, I am going to leave this decision to you folks," responded Callahan. "I feel that this issue has already cost the Town of Ayer far too much time and money. It has certainly cost me far too much time and money."
"The Planning Board, in my opinion, is mired in this issue," said Callahan. "The Board hasn't accomplished anything in an entire year and the most basic duties of the Board are being disregarded by Town Meeting because of lack of confidence in elected officials and staff." Callahan rued the chances that Town Meeting will pass a new zoning bylaw "although I strongly believe it is needed."
"I will do what I can to help the Town of Ayer," signed off Callahan.
Callahan had been embroiled in a document discovery tussle with the Planning Board, pressing his peers and Sullivan to release minutes of 2009 and 2010 board meetings that predated his election. Public records laws provide for the production of such documents on demand.
On Sept. 21, Callahan allegedly locked horns in Sullivan's third floor office, demanding the immediate production of the minutes. Callahan left empty handed.
Conservation Commission agent Becky DaSilva-Conde, located a desk away, testified that Callahan was "screaming" at Sullivan. Sullivan testified in court that Callahan later called her office and said "I would be sorry." Sullivan presented a letter to the judge that she said was penned by Fermanian and advised Callahan to stay away from Sullivan. The letter was purportedly dated Sept. 26.
Asked to produce the letter, Sullivan later forwarded an unsigned, draft version of the letter. An email thread indicates the letter was originally written by Pontbriand at Fermanian's request. Callahan reports that, in a letter dated Dec. 16, 2011, Fermanian confirmed in a letter sent certified mail that the Planning Board never sent any letter to Callahan advising him to stay away from Sullivan.
In October, Callahan's record request was eventually fulfilled. The Planning Board, acting through Pontbriand, notified Callahan that 60 pages of meeting minutes would be released after Callahan paid a $53 copying fee. Fingerpointing followed between Pontbriand, Fermanian and Sullivan as to how the bill rose above nominal copying fees mandated by state public records law.
Callahan paid the bill and got the records. Callahan was later compensated on the charge by vote of the Planning Board, which also voted to timely post meeting minutes and agendas for its meetings on the town's website.
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