RETIRING Town Administrator William Gustus (l) and incoming Town Administrator James Boudreau are working side-by-side this week as Gustus prepares to hand over the reins to his successor on Friday, concluding 12 years of service to the town. (Maureen Doherty Photo)
By MAUREEN DOHERTY
LYNNFIELD — During a lull in the selectmen’s meeting Monday night, while the members were signing paperwork, local attorney Michael Walsh requested permission to speak. He subsequently served Selectmen Chairman Dave Nelson, Selectmen Vice Chairman Phil Crawford and Town Administrator Bill Gustus with what he said was a summons for their appearance in court on an alleged violation of the state’s Open Meeting Law.
“As you gentleman are probably aware, we have an Open Meeting Law complaint that we’ve been discussing with (Town Counsel Thomas) Mullen. This morning we filed with the Essex Superior Court and the case will be heard on Jan. 15. These are actually summonses for your attendance at the hearing,” Walsh said.
The complaint has been brought forth by “three registered voters” who are residents of Lynnfield identified as Walsh, Ryan Collard and David Miller, a former selectman and town moderator. The men allege “… a long pattern of intentional violations of the Open Meeting Law, including the use of illegal polling and by interviewing final candidates in private.” They also allege that the town violated the OML “in responding to complaints and in illegally delegating their powers.”
The plaintiffs allege 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 on Oct. 29 and 30, Crawford announced that one candidate stood out from the field and he nominated James Boudreau to the post.
The court complaint states that Terranova “objected to deviating from the previously agreed upon plan of site visits and further interviews of the finalists” and he believed the only agenda item to be discussed would be the public announcement of the finalists.
Ultimately, Nelson and Crawford voted to offer the job to Boudreau subject to an acceptable contract being drawn up. Terranova was opposed. Boudreau accepted the position and started his first day on the job Monday. Both Boudreau and Gustus were present at the meeting.
“Will we be getting any more information on this?” Selectman Tom Terranova asked Walsh. Terranova was the only selectman not listed as a defendant in the case but he was also issued a summons to appear in court by Walsh.
Walsh said there would be. “The court requires that a summons be issued; however, in an attempt to save the sheriff from going to your collective doors I am going to ask Mr. Mullen to accept service for it. There’s a comparatively large complaint given my filing and Mr. Mullen’s filing.”
Without further discussion, Nelson returned the board’s attention back to the remaining items on the agenda. At the end of the meeting, Terranova asked Gustus if “we’re all required to show up on Jan. 15 at 2 p.m. at the courthouse?”
Gustus said he was unsure and would need to ask town counsel. “It has been docketed as a case but we haven’t seen a court complaint and we have not even received an answer, to my knowledge, from the Attorney General’s Office, so I don’t know why this is in Superior Court when we haven’t even heard from the Attorney General.”
Gustus, who officially retires on Friday, Jan. 9 and was participating in the last selectmen’s meeting of his career, explained the typical administrative process for such complaints starts at the town level. If it cannot be worked out here, it goes to the attorney general’s office. “If you don’t work it out there, then you go to court,” he said.
Gustus said it is possible that they may be required to appear in court on that date. “I don’t know that right now because this is not a subpoena issued by a court. It was not served by a constable.”
He planned to consult Mullen Tuesday and would inform the selectmen of his opinion.
Differing interpretations of OML
After the meeting, Gustus told the Villager that the “crux of (Walsh’s) concern is that the Board of Selectmen conducted serial interviews of the candidates. One selectman interviewed a candidate and then they went to the next selectman and the next selectman but he never alleges that there was any deliberation among the selectmen. And he doesn’t even allege that they spoke to each other. He has a different interpretation of the Open Meeting Law. He believes that it requires an open session to interview finalists.”
Gustus disagrees with this interpretation. “A violation of the Open Meeting Law involves deliberation among the members of the board. He doesn’t allege that. He alleges that they interviewed people serially and the members of the board have denied that they spoke to each about those interviews or discussed the candidates with each other,” he said.
All three selectmen and Gustus were interviewed by Mullen about the matter to enable him to respond to the complaint, which was submitted to the AG’s office on Dec. 18.
The OML requires that complaints of violations be filed with the AG’s office within 30 days of the meeting in question. Mullen pointed out in his response to the AG that Walsh’s complaint was filed by e-mail to the Town Clerk on Dec. 3, but date-stamped by the clerk Dec. 4. Despite the lapse of one day, Mullen said the board requested that he investigate whether a violation occurred and, if so, determine an appropriate remedy.
In attempting to establish a pattern of OML abuses, Walsh’s complaint included references to past appointments made by the board after individual interviews with finalists for the DPW Director on July 15, 2014, the Town Clerk on Feb. 24, 2014, and the Fire Chief on Dec. 16, 2013. Mullen stated in his response that these allegations were “so far outside the 30-day period that I have made no effort to investigate them and I would object to any effort to compel the board to do so.”
