By MAUREEN DOHERTY

LAWRENCE — Essex Superior Court Judge Robert A. Cornetta dismissed all counts brought against the Lynnfield Board of Selectmen and former Town Administrator Bill Gustus in the “three registered voters” case heard Jan. 15.

In issuing his decision, Cornetta stated the defendants’ motion to dismiss the case is “allowed.” He outlined his reasons in an eight-page decision dated May 6.

The case arose out of an allegation of an Open Meeting Law (OML) violation due to the manner in which the successor to retired Town Administrator Bill Gustus was selected. The three registered voters who brought the suit were attorney Michael Walsh; attorney, former selectman and former town moderator David Miller, and resident Ryan Collard. Walsh represented the plaintiffs.

Town Counsel Thomas A. Mullen represented former Board of Selectmen Chairman David Nelson, former Vice Chairman Phil Crawford and former T.A. Gustus.

Crawford, who now serves as the board’s chairman, told the Villager, “I am very pleased with the decision of the Court to allow our motion to dismiss on all counts. The Judge concurred with our Town Counsel that the complaint was groundless and at no time did the process of hiring our new Town Administrator violate the Open Meeting Laws.”

Mullen concurred. “I’m very gratified. It was a clean victory for the town and I hope we don’t see any more needless litigation in the form of an appeal,” he said.

The plaintiffs alleged that the selectmen violated the OML on Nov. 3, 2014 because the agenda for that night stated only that there would be an “update on Town Administrator search,” but when they began discussing the seven finalists, each of whom were interviewed separately for at least one hour by each selectman in separate rooms at Town Hall on Oct. 29 and 30, Crawford announced that one candidate stood out from the field and he nominated James Boudreau to the post. Nelson was in agreement that Boudreau was also his top choice for the post.

The complaint by Walsh stated that Selectman Thomas Terranova “objected to deviating from the previously agreed upon plan of site visits and further interviews of the finalists” at a future public meeting and he believed the only agenda item to be discussed Nov. 3 was the public announcement of three finalists. The vote to appoint Boudreau, subject to a favorable contract agreement, passed 2-1 with Terranova opposed.

Cornetta agreed with the town. On the first count of improper notice of the Nov. 3 public meeting, the judge opined: “…nothing in the Open Meeting Law requires the listing of topics contain anything but just that – ‘a listing of topics that the chair reasonably anticipates will be discussed at the meeting’ – which is precisely what occurred in that notice.”

Cornetta further stated that it was “not surprising” that the listing did not include a possibility of a vote. “Indeed the Board did not know they were going to vote on Boudreau’s hiring until they began discussing the matter, in front of the public and realized for the first time that two out of the three Board Members favored the same candidate.” Furthermore, the judge stated the town was well aware that a search for a new T.A. was underway because the board initiated the search the previous July by voting at a public meeting to hire a consulting firm.

On Count II, the plaintiffs had alleged the defendants violated the OML when individual board members conducted in-person interviews of the candidates, constituting “deliberations.”

Again, Cornetta agreed with the town that that such interviews do not violate the OML. “…a ‘deliberation’ is defined as ‘an oral or written communication through any medium, including electronic mail, between and among a quorum of a public body on any public business within its jurisdiction.’ … Thus, private interviews between a member of a public body and a candidate for employment with that public body are not ‘deliberations’ as defined by the Open Meeting Law. …”

He further stated that board members “individually providing Gustus with their recommendations after interviewing the candidates does not constitute a ‘deliberation’ as defined by the Open Meeting Law, because individual Board members speaking with Gustus does not constitute a quorum.”

Count III, which alleged the board handled Walsh’s OML complaint differently than prior OML complaints by not discussing it publicly, was also dismissed by Cornetta because “nowhere in the Open Meeting Law did the legislature require that a public body discuss every complaint alleging a violation.” The judge noted that the town followed proper procedures in handling the complaint by sending a copy of the complaint to the attorney general and notifying the AG of “any remedial action taken” within 14 days of receiving it.

No standing in other appointments

Lastly, Cornetta dismissed Counts IV and V with regard to other challenged appointments in the hiring of Mark Tetreault as Fire Chief on Dec. 16, 2013, Trudy Reid as Town Clerk on Feb. 24, 2014 and Andrew Lafferty as Director of Public Works on July 15, 2014. “Because plaintiff Collard has only been a registered voter since Sept. 29, 2014, the Voters do not have standing to challenge the hiring of those individuals under G.L. c. 30A, section 23f.” A minimum of three registered voters are needed to initiate a civil action to enforce the OML.

The cost to the town to litigate this matter was approximately $5,500 according to Crawford and Mullen.