AYER - Selectmen Chairman Jim Fay is shooting back at fellow selectman Frank Maxant's claim that the board violated the Open Meeting Law on June 5. In his June 15 complaint to the Attorney General's Office, Maxant alleged the board moved "under the guise of litigation strategy" to conduct a closed door session regarding three alleged eyesore properties.
The Open Meeting Law provides ten instances when a public body may deliberate in executive, or closed door, session. The June 5 selectmen meeting notice referenced two closed-door matters would be discussed, including one matter labeled "Litigation Strategy - Properties Enforcement."
Closed door talks regarding pending litigation are legitimate when there is "ongoing litigation" and "only if an open meeting may have a detrimental effect on the litigating position of the public body."
"There was no litigation extant. There was no litigation planned," said Maxant in his complaint. "There was no litigation threatened. No litigation or litigation strategy was discussed."
Rather, Maxant said the board's focus was "how to press an octogenarian landlord to 'invite' inspectors into his houses & decided upon aggressive zoning enforcement against a self-supporting paraplegic who recently returned home to recuperate from lengthy hospitalization."
Maxant alludes to two property owners. One is wheelchair-bound Mark Velardi who owns 71 Sandy Pond Road where stacks of felled-trees and commercial vehicles line the
The other property owner is Maxant's landlord - 80-year old Hugh Ernisse. Ernisse owns homes at 14 Williams Street (where Maxant lives) and at 128 Washington Street, which is located across the street from the Page Hilltop Elementary School and the Ayer-Shirley Middle-Senior High School.
Ernisse has welcomed sex offenders and drug addicts as housemates and tenants, several of whom have landed in court over the past year. The FBI raided Williams Street in March 2011 in a hunt for level 3 sex offender Thomas Donahue who was eventually captured and extradited back to the United States from Belize to be indicted in April 2011 on charges of possessing, producing and distributing child pornography.
In response to Ernisse's tenant population, Fall Town Meeting approved a restrictive bylaw last October which prohibits sex offenders from moving into homes within 1,000 feet of town schools, parks and senior centers, among other places. On Williams Street, 30 neighbors petitioned the selectmen in March 2011 for the forced cleanup of Ernisse's yard. Ernisse appeared at a subsequent selectmen's meeting and apologized for the condition of his tenement property.
Ayer Building Inspector Gabe Vellante told the selectmen on Jan. 10 that the town's public-way 'nuisance' bylaw was toothless regarding private property and that written warnings to landlords to clean up their yards have gone ignored. The selectmen asked Vellante and the Ayer Board of Health to generate an estimate of the legal expenses to pursue the property owners into court on nuisance bylaw and/or sanitary code violations.
In his complaint, Maxant said, "I believe the [OML] violation was intentional because I objected to addressing the topic in executive session, explaining why to my colleagues, who've had the same OML training. They brushed me aside."
Maxant notes in his Open Meeting Law complaint that Fay referenced a potential conflict of interest dilemma for Maxant in participating in the board's Ernisse debate.
"The Chair mentioned 'Town Counsel' & 'Conflict' in a sentence suggesting I, as tenant of the landlord, should recuse myself. He said nothing specific. I didn't recuse. We've had the same ethics training."
Maxant was enraged to learn at the closed door meeting that town officials had approached Ernisse to get permission for Vellante to inspect the interior of Ernisse's two homes. Maxant advised Ernisse that there was no legal requirement to let Vellante in and Ernisse revoked interior inspection permission for Vellante.
Maxant sent written, notarized notice to Vellante and Town Administrator Robert Pontbriand on June 7, warning the town to stay out of his rented unit. "I hereby assert my right to quiet enjoyment of my home & curtilage. My quiet enjoyment would be seriously impaired by the entrance of any public official or any person acting in a public capacity."
"Therefore, except for uniformed public safety officials responding to a confirmed imminently life-threatening situation, I forbid anyone, and expressly anyone holding public office or employment, or acting in a public capacity, from trespassing upon my curtilage and/or making any form of entry into my home," wrote Maxant. Curtilage is defined as the land immediately surrounding a house or dwelling, including any closely associated buildings and structures.
"Any warrant for such as the above will be a false warrant," warned Maxant. "I will spare no effort to ensure that anyone associated in any way with such a warrant (including, but not limited to suggesting, seeking, swearing, issuing, transmitting, executing) suffers the fullest penalties therefore."
-- FAY: "I'll never apologize."
Fay blasted Maxant on June 19 at the beginning of the selectmen's meeting. "We have every right to go into executive session on matters we feel as appropriate," said Fay.
Fay said, "I advised of appearance of Conflict of Interest since he lives at one residence in question."
The Conflict of Interest Law, administratively adjudicated by the Massachusetts Ethics Commission, bans acts that may give the appearance of split loyalties. A selectman "may not act in a manner that would cause a reasonable person to think that (s)he would show favor toward someone or that (s)he can be improperly influenced," according to the Ethics Commission website.
Town officials must consider whether their "relationships and affiliations" could prevent them from acting "fairly and objectively" when performing duties for the town. If the official "cannot be fair and objective because of a relationship or affiliation, [he]she should not perform [his]her duties."
Officials can trump a conflict of interest claim by filing a form disclosing a potential conflict of interest. As of Monday afternoon, Ayer Town Clerk John Canney confirmed that Maxant had not filed any kind of disclosure regarding Ernisse as outlined in Mass. Gen. Law Chapter 268A, Section 23(b)(3).
Fay alleged that Maxant was "further in violation" of the law by "releasing executive session material to the press, in kind a violation of the Open Meeting Law." Fay ordered that Maxant's complaint be released to the public at the June 19 meeting.
"The Board of Selectmen has a responsibility to lead as a team member. Mr. Maxant again fails in that," said Fay. Fay said that Maxant's claim the selectmen and the Board of Health acted 'in legion" against Ernisse is "ludicrous and without merit." Fay said it was "criminal" of Maxant to allege the selectmen were "in league" with the Board of Health and building inspector.
Maxant sought an apology for the alleged OML infraction. Fay refused, saying, "A selectman who is a strong leader should never apologize for enforcing the laws of Ayer. I'll never apologize."
Fay suggested Maxant "stop pursuing his personal philosophy and goals."
Fay permitted Maxant to answer. "I'll keep it brief," said Maxant. "I reject virtually everything you said. If the majority decides to violate the law, the rest should go along?"
Maxant professed he was "very familiar" with the Open Meeting Law, adding that the selectmen "very clearly violated" the law. To rectify the situation, Maxant said it's appropriate to disclose to the public information and documents from the closed door session.
"We know we did something," said Maxant. "We knew we were violating people's rights under the law." Maxant has repeatedly asked that whenever the board talks about property owners, that the owners are given the opportunity to be present to hear charges about their property.
"Beware because you're judged by the company you keep," answered Fay.
"You represented that your comments represented the board," said selectman Pauline Conley to Fay. "I agree entirely with Mr. Maxant's position at this point in time, having participated in the executive session."
"You didn't say so at the time," said Fay.
Conley explained, "I agreed to go" into executive session but realized at the end of the deliberations that the meeting fell short of the legal exemption permitting closed door debate. "I didn't feel it appropriate afterward."
"That's a point of legal interpretation," said Fay, who knocked Maxant's constant condemnation of the effectiveness of town counsel. Fay said it's a "constant issue of Mr. Maxant's. He doesn't' think that lawyers are right to begin with."
"He isn't alone in that regard," answered Conley.
Nashoba Publishing made a formal request for the release of the selectmen's executive session meeting minutes on June 25. Fay responded via email that "The record will show Selectman Conley agreed at the time the XS [executive session] meeting was proper. I believe at the open meeting she indicated she has now changed her mind. I believe a thorough review of the audio version of the XS session will support this thinking."
Fay also revealed that in closed door session, "The Board allocated funding to the property enforcement issues and I for one saw the XS session as a proper step in deciding exactly what our strategy was in spending the Legal funds to that purpose. The Town legal counsel need not be present until we formulated our policy position in the matter with regard to guidance to counsel as how to proceed."
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