NOTE: This story provides updated and expanded coverage of the Ayer selectmen's March 22 meeting. - Ed.
AYER - Dozens of Ayer employees and officials filled Town Hall on Thursday night in a show of force for Ayer Police Chief William Murray. Ayer's top cop was the subject of a closed door selectmen meeting regarding 9 board-initiated "complaints" against Murray.
However, two of the five selectmen have challenged their peers, stating that they did not complain against Murray. The next day, Chair Jim Fay challenged one selectmen's assertion, stating that he had, in fact, complained against Murray.
And while Murray held the power to fling the door open to the selectmen's deliberations, he opted not to do so since he'd not been advised about the details of the selectmen's complaints.
There were two items slated for closed door session. Before entering executive session, the board must first convene in open session as per the Open Meeting Law (OML).
For that ten minutes stretch, the audience was packed with town employees, officials and department heads, including the Treasurer, Fire Chief, DPW Supt., Building Commissioner, Town Accountant, Assessors administrator, Town Moderator, Council on Aging Director, the Police Lieutenant, patrolmen and fire fighters. Many expressed support for Murray.
Fay read aloud the stated grounds for the closed door deliberations. Second on the agenda was the board's review of annual department head evaluations for several managers. Exemption #2 of the OML permits such closed door review, since municipal department head evaluations are not public documents (except for school superintendents).
However Murray's evaluation was singled-out and posted 48 hours in advance of the meeting, as required by law, but citing a second rationale - Exemption #1 of the OML. Exemption #1 permits closed door deliberation to discuss "the reputation, character, physical condition or mental health, rather than professional competence, of an individual" or to "discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual.
An employee's evaluation alone is not the proper posted reason to use Exemption #1 of the Open Meeting Law, according to the Attorney General's March 12, 2013 guidelines on the law. The AG's Office states that deliberations over employee evaluations "should be held in open session to the extent that the discussion deals with issues other than the reputation, character, health, or any complaints or charges against the individual."
Fay identified the 'complaints' as "performance and improvement measures the board would like to make." Fay added, "It is the role of management to give employees every opportunity to succeed in their position. We want this forum to be professional and achieve those ends."
"This meeting is not to be thought of as - quote - a disciplinary hearing," said Fay. "Exemption #1 is the only one that we can use to do that, and regrettably the word 'complaints' is in that language."
"This is actually a performance measure in terms of the board being able to talk to its employee," said Fay. "It's the only option we have, if you will, under Exemption 1"
Fay said Murray was advised "that we needed to speak to him on certain areas of performance under his management."
Under the law, the targeted public official has the right to choose whether or not the board discusses the complaints against them in a meeting open to the public. "Chief, do you choose to go into executive session?" asked Fay.
"I am his counsel," said Murray's attorney, John Vigliotti of Worcester, who is affiliated with the Massachusetts Police Association's Legal Defense Fund.
"You can advise him if you so choose," said Fay. "But I'm speaking to the chief now."
"On advice, I can't vote that you go into executive session," said Murray. "My understanding is that I have to wait for you to go into executive session first before I can exercise that right."
"Chief, since you are the subject of the executive session, you are the only person who can allow it to be in open session. It is entirely your choice," said selectman Pauline Conley. "I would say to you, as a resident and as a member of this board, I would like to see you do it in open session.
"Mr. Chair, until I'm really clear on what this meeting is about, I'd prefer this be in closed session," said Murray. Selectmen Frank Maxant and Christopher Hillman respectively moved and seconded a motion to enter closed door session. Before the vote took place, one selectman challenged the grounds for the proceeding.
--Procedural challenge lobbed
"How do we intend to proceed if the chief chooses to have this in open session after we discuss with him whatever it is we're going to discuss with him," asked Conley.
"We'll entertain that when he chooses to do that," answered Fay.
"And if we chose not to go into open session despite the chief's request, then what?" asked Conley.
"Oh I don't think we'd do that," said Fay.
"Before we vote on this motion, based on our conversation earlier this evening, I would simply like the open session record to reflect that I do not agree that this was properly posted as an executive session," said Conley. "I do not agree that the matter we are about to discuss with the chief, as I have been explained within the last 15 minutes, is appropriate for executive session, and I will participate only because I do not want to not know what has happened and I have that right as a member of this board."
"I do not agree, as I have explained to you, and I will object and not support the motion for executive session," said Conley. "I would encourage any member of this board who feels that way to also not vote for executive session."
"Well that's interesting because we do have nine complaints which I cannot address in open session but I will address in executive session," said Fay.
"The nine items I was shown a few moments ago are not complaints but elements and issues relating to performance which I understand were incorporated in the chief's department head evaluation prepared by Mr. Pontbriand which I have never seen," said Conley.
Nashoba Publishing asked Pontbriand if Murray's evaluation had been shared with all board members. Pontbriand had not responded as of Monday morning.
"Again, that's a matter of your interpretation," said Fay. "I received these and was told they were complaints. I don't want to debate the issue."
"That's fine," said Conley. "May I ask in open session, for the record, from whom those complaints were received because I've yet to know that."
"Robert tells me they were received from members of the board," said Fay. Fay did not indicate if he'd lodged any of the complaints against Murray.
"For the record, I have not made complaints against the chief with respect to the nine items on that list," said Conley. Hillman shook his head but did not comment at the meeting.
Later asked if he had filed complaints against Murray, Hillman said, "out of respect to executive session and to Chief Murray, I feel it's not appropriate to comment on anything that transpired this evening at this time."
After the meeting, Maxant told Nashoba Publishing that he'd left a voice mail message with Murray earlier in the day to state that he, likewise, was not one of the complaining selectmen.
Selectman Gary Luca did not attend the first closed door meeting of the evening regarding Murray but did attend the second closed door session on other department head evaluations. Luca did not answer Nashoba Publishing's request for comment as to what complaints, if any, he may have lodged over Murray's performance.
Conley dissented in the 3-1 vote to enter executive session. Maxant said would vote to enter executive session as a "proxy" for Murray since the chief stated he wished to hear the complaints against him behind closed doors.
The audience cleared the room, leaving the selectmen, Murray and his attorney. Thirty minutes later, Murray and Vigliotti emerged to employee cheers.
"It's our opinion the chief has done nothing wrong," said Vigliotti.
"I can't discuss what went on in executive session obviously but I don't feel that there was any actual, what I would consider, 'complaints' against the chief - that's my opinion," said Vigliotti. "As a result, I think he'll be able to move forward from this and continue to do the good work that he's done for the town of Ayer."
Murray is in the midst of a three year contract with the town which is due to expire in 2014. Murray's salary was reflected at just under $91,000 in the 2011 Town Report.
--Post meeting fallout
On Friday, Fay sent out a directive through Pontbriand to Nashoba Publishing stating, "the meeting with the Chief was XS [executive session] session material and should not be discussed by the parties involved until the material is released by the Board."
"Any comments by the parties involved on the material covered in XS are inappropriate and a violation of Open meeting law Executive Privilege," said Fay.
Maxant responded to Fay's directive, which was likewise copied to the entire Board of Selectmen. "Cat got your tongue, Jim? You're full of commentary of your own choosing," said Maxant. "I hope we'll see you Thurs. 6-8 p.m.," said Maxant to Fay.
On Thursday, March 28, Ayer Town Hall will serve as one of several meeting sights for the Attorney General's Office to host an Open Meeting Law workshop. The event is open to all to attend.
Fay answered Maxant while copying the newspaper, and alleged that Maxant did lodge complaints against Murray. It was not clear if Fay alleged that Maxant's complaints were among the nine the board used to enter executive session on Thursday night.
"Frank, you know but choose to not comply with Executive privilege. For me to reveal the discussion of the meeting with the Chief would be inappropriate and violation of executive privilege which the Chief chose to invoke," said Fay.
"As you know the full board owns this but some choose to be less than honest about it," said Fay to Maxant. "I find it most distressing you would say you have no complaints when in fact you do."
"You heard what I said, Jim and it wasn't what you claim," said Maxant in a Monday afternoon email, returning a volley Fay's way. "Can you describe 'Executive privilege' and say where it appears in any relevant law or regulation? I don't know of any use of the term in municipal government. I don't know of any revelation of the discussion of the meeting. I don't know of any violation of law or regulation by anyone on this matter."
The selectmen next meet on Tuesday, March 26 at 7 p.m. at Ayer Town Hall.
Follow Mary Arata at twitter.com/maryearata.