AYER -- On Tuesday, the Ayer Board of Selectmen celebrated its second consecutive regular business meeting in which all votes were unanimous. It was the last regular business meeting before the Tuesday, April 30, town election.

Only one member, Frank Maxant, is seeking re-election in a four-way race for that seat.

Following the meeting, however, Chairman Jim Fay bickered with Maxant upon Maxant's release of six pages of redacted minutes from the board's Nov. 14, 2012, meeting with attorney Leonard Kesten, which took place two weeks before Kesten defended the town and Police Chief William Murray on Nov. 27-29 in a suit filed over the town's sex offender restrictive bylaw.

Fay was enraged, claiming Maxant was "out of control" and in violation of "executive privilege" absent a board vote to release the document. Maxant countered that he acted within the law, and, conversely, that the board was skirting the law by refusing their release. "I swore an oath to serve impartially and in accordance with the law."

The other selectmen deny what Maxant maintains -- that Kesten advised the board that the bylaw should be amended to prevent further costly constitutional challenge. The minutes broach the issue.

"Let's rework the bylaw," said Kesten, according to Town Administrator Robert Pontbriand's handwritten notes from the meeting, provided by Maxant. Pontbriand has yet to confirm for Nashoba Publishing that the notes are, in fact, his.


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The bylaw bans Level 2 and 3 sex offenders from living within 1,000 feet of schools, parks and senior-housing complexes. King, then classified as a Level 3 offender, issued a two-pronged legal argument.

King prevailed in his charge that the bylaw was not in effect when Murray told King he could not move into a house within a "safety zone." Granted relief on those grounds, the court dismissed as moot King's second claim that the town bylaw is unconstitutional.

In light of the meeting with Kesten, Maxant has repeatedly asked his peers to propose amendments to the bylaw to Town Meeting. None are included in the warrant for the May 13 annual Town Meeting.

Board blocks

"We've gone through them in note form and went through a redaction," said Pontbriand of passages blacked out in the purported minutes. When Maxant asked Pontbriand to distribute the notes to the board for review, Pontbriand responded, "I left them in my office."

"The executive session minutes should be reviewed by the whole board in executive session," advised Pontbriand. "Then the board needs to make a motion and vote to release the minutes or not."

According to the Attorney General's guidelines, public bodies may privately meet if a public discussion would have a "detrimental effect on the litigating position of the public body." Generally speaking, once the business underlying the lawfully convened executive session meeting has concluded, the minutes must be released.

Maxant maintains the records should have been released upon Nashoba Publishing's February request. "That's when the matter was settled. We've been in violation of the open meeting and public records laws."

"Correct me if I'm wrong, but there are several members around the table who, in addition to wanting to fully review them, have questions as to whether they should even be released," said Pontbriand. "Selectman Maxant has a different opinion on that."

"Though many contend that the matter is closed, there are members of the board -- and you know who they are -- who are arguing that the attorney-client privilege may make it prohibitive that they're ever released," said Pontbriand. "But that's a decision for the board to make."

"Who's the client?" asked Maxant. Maxant has asserted that town counsel represents the town's collective best interests, and not necessarily the stance of any sitting board of selectmen.

"The town of Ayer," answered Fay.

"I have my reservations," to releasing the minutes, said Selectman Christopher Hillman. "I'll leave it at that." But Hillman also sought to assure the public "There's not a smoking gun here" in the meeting minutes. 

When Nashoba Publishing noted that the attorney-client privilege could be partially or totally waived by the board, Selectman Pauline Conley quickly moved that the board never agree to waive the attorney-client privilege "for any purpose." The motion wasn't put to a vote.

Without copies of the minutes before them, the board did not opt to review Pontbriand's redactions. Furthermore, Selectman Gary Luca suggested the review should occur in executive session.

The board agreed to meet in closed-door session on May 7 (a week after the town election) to approve and possibly release accumulated executive session meeting minutes. "That will solve the problem and be the end of it," said Fay. "Based on legal advice, they may stay under cover perpetually."

The alleged minutes show ...

According to the purported record released by Maxant, all five selectmen attended the Nov. 14, 2012, meeting. The meeting concluded with a unanimous 5-0 vote, which, though the reason for the vote was redacted, presumably authorized Kesten to proceed to trial against King.

"(The) ACLU is all over this" case, said Kesten in the notes. Fay said the bylaw was motivated by citizen "pressure."

Maxant argued against a blanket ban on all Level 2 or 3 offenders, instead suggesting the ban apply to those convicted of sex crimes including "deliberate, unwanted genital contact."

"You can't control the sex offender registry," replied Kesten. "You said all Level 2 and 3s regardless of status." Whatever "options" Kesten suggested to the board are redacted by thick black marker.

Conley asked Kesten if a "reasonable basis" for the bylaw can be citizen "concern/fear." Kesten answered, "No."

The "fear must be rationale" and based on "common sense," said Kesten.

"Nobody wants them," said Kesten, according to the alleged meeting minutes.

Follow Mary Arata at twitter.com/maryearata.