AYER -- One week before the April 30 town election, the Board of Selectmen voted Tuesday 4-0 to file ethics and open meeting law complaints against fellow Selectman Frank Maxant. Maxant abstained from the votes.
Of the five, only Maxant faces re-election next Tuesday. Maxant advised the cable television public access channel that he'd opt to open the meeting to public review. The meeting notice stated the meeting would be held behind closed doors. As the subject of the complaint, Maxant alone could override that decision.
Town Counsel Mark Reich provided Chairman Jim Fay with an opinion letter on Maxant's April 16 release of "executive session minutes" to Nashoba Publishing. Actually, the six handwritten pages of notes were taken by Town Administrator Robert Pontbriand at the board's Nov. 14, 2012, closed-door meeting. The selectmen have yet to see draft minutes from the meeting.
Even without minutes in hand, the board specifically voted on April 16 not to release the record of the November meeting. Maxant released a heavily-redacted copy of Pontbriand's notes later that same evening, arguing that the board was violating the open meeting law by not honoring the newspaper's February request for the release of the meeting record.
Reich opined Maxant's move "constitutes a violation of the conflict of interest law" if the Ethics Commission determines the release furthers Maxant's "personal interest.
Reich also opined that Maxant violated the open meeting law by releasing records "exempted" under public records law. The November meeting was convened two weeks before the town was in U.S. District Court, defending Police Chief William Murray and the town's 2012 bylaw banning Level 2 and 3 sex offenders from living within 1,000 feet of schools, parks and elder living complexes.
Maxant said he'd redacted Pontbriand's notes, striking out the board's discussion over "litigation strategy" in the case. Maxant said Pontbriand reviewed Maxant's redacted copy, agreeing the notes left intact did not relate to "litigation strategy" well after the period for appeal by plaintiff and sex offender John King lapsed.
Fay asked the newspaper to debunk Maxant's claim that attorney Leonard Kesten warned the board in November that the bylaw sat on shaky constitutional grounds and merited revision to inoculate the town against costly constitutional attack. Kesten was retained to defend the town against King's two-pronged legal argument against Ayer.
The judge agreed with King on the first phase of the trial -- that King has properly registered his intended Whitcomb Avenue home (located within 1,000 feet of a park and an elder complex) five days before the bylaw took binding effect. The judge dismissed King's second major claim that the bylaw is unconstitutional.
Kesten's pretrial commentary, as captured by Pontbriand, included the following quotes: "Let's rework the bylaw" and that the "(American Civil Liberties Union) is all over this case."
Fay stated that the board will consider releasing the minutes on May 7, one week after the election. Pending the state's investigation, Fay said the board may also opt to later censure Maxant.
Fay held a copy of the April 19 edition of the Ayer Public Spirit newspaper in his hand when asking Maxant, "Did you in fact release these materials to the press?"
Maxant answered the question with another: How did the board determine the need to meet to "bring these charges?"
At Fay's request, Fay states "Robert (Pontbriand) polled the board."
"Then they said 'Yes, let's meet and discuss it,'" said Fay.
"I certainly wasn't part of it," countered Maxant. Nashoba Publishing has requested all email communications between Pontbriand and selectmen over the past week to see how the meeting was organized.
Maxant charged the process of "polling" the board about whether or not to file a complaint against Maxant equates to a "serial meeting" with "the town administrator presiding." Maxant claims the process itself violates the open meeting law. Fay denied the charge.
"We've done it a number of times," said selectman Gary Luca. Selectman Pauline Conley agreed.
"I have not talked to anybody on this board in a week," said selectman Christopher Hillman. However, Hillman stated he did email Pontbriand asking "what can be done" about Maxant's record release.
"According to legal counsel, there have been laws broken in his opinion," said Fay.
Conley motioned for the board to file an ethics complaint against Maxant. Maxant argued the board was choosing to "keep the public in the dark" regarding the bylaw's weaknesses. Conley was an early sponsor of the legislation and remains a vocal proponent of the bylaw.
Conley answered Maxant, stating the vote would merely send the complaint to the Ethics Commission to "determine or investigate whether or not there's been a conflict." Maxant abstained as the board voted 4-0 to file an ethics complaint.
Maxant called the process "a waste of time and embarrassment to this board."
Conley then motioned for the board to make an open meeting law complaint to the Attorney General's Office against Maxant.
"The whole key is whether they were improperly released," said Maxant. "What I released should have been released by the board in January."
"That is your opinion," said Fay.
Maxant explained Pontbriand's notes contain "vital information" for residents. If the bylaw is again challenged "we'll almost certainly lose," said Maxant. Maxant restated that the redacted notes do not discuss litigation strategy but contain only discussion over the "characteristics of the bylaw."
Hillman alleged that Maxant has encouraged out-of-town groups to challenge the bylaw, citing emails he'd seen with several groups. However, after the meeting, Hillman provided a copy of one email from one group, USA Fair, which had been copied to the newspaper by Maxant a week ago. The email states the group had been monitoring the Ayer litigation and that the group reached out to Maxant.
"It's absolutely disgusting," said Hillman to Maxant. "You're putting the town in harm's way."
"False. I was contacted by organizations that read about it in the newspaper," said Maxant.
After the open meeting adjourned, Fay denied the meeting was timed to harm Maxant's re-election chances.
"No, that has nothing to do with it," said Fay. "That has no bearing on it."
Maxant disagreed, stating the timing was "absolutely" suspect. "The scheduling to release (minutes) after the election is (also) a post-election stunt to shield them from criticism."
Maxant said he was "surprised" by the ethics complaint, stating "this isn't a topic of the Ethics Commission" since there's no evidence Maxant stood to financially gain from amending the bylaw or releasing the record.
Maxant said he didn't choose to file his own complaint earlier with the Attorney General's Office because he already has a separate open meeting law complaint pending against the board.
"I didn't want to seem like a complainer," said Maxant.
In that instance, Conley agreed with Maxant, stating the board didn't have valid grounds to meet in executive session over several targeted properties last year.
Maxant has long argued that town counsel should represent the collective best interest of the town, and not the viewpoints of the Board of Selectmen. "That's something that Kopelman and Paige misses entirely," said Maxant.
"This bylaw makes the town a target for a lawsuit we cannot win," said Maxant. "We should be amending this bylaw now to make it strong so we won't be sued."
After the adjournment of the open meeting, a source advised Nashoba Publishing that Fay, Hillman and Conley were allegedly meeting in Pontbriand's office on Tuesday night. None of the three selectmen immediately responded to an emailed request for comment.
A meeting of a quorum of the board absent a public posting is a violation of the open meeting law.