LYNNFIELD — An allegation of an Open Meeting Law violation due to the manner in which the successor to retired Town Administrator Bill Gustus was selected is now in the hands of Essex County Superior Court Judge Robert Cornetta.

In the Lawrence courtroom last Thursday, Judge Cornetta took under advisement the written and oral arguments posed by both Town Counsel Thomas Mullen, who is representing the defendants, and attorney Michael Walsh, who is representing the three plaintiffs, which includes himself. Also named as plaintiffs are fellow Lynnfield residents Ryan Collard and Dave Miller, an attorney and former selectman and town moderator.

Cornetta declined to accept any witness testimony at the hearing in the case known as Three Registered Voters v. Lynnfield Board of Selectmen Chairman David Nelson, Vice Chairman Phil Crawford and T.A. Gustus.

On behalf of the defendants, Mullen submitted two motions, one seeking a judgment of dismissal and the other seeking a motion to quash subpoenas and for a protective order, along with affidavits of testimony he obtained from each selectman, retired T.A. Gustus, new T.A. James Boudreau and Town Clerk Trudy Reid.

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 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 states 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.

Boudreau’s first day on the job was Monday, Jan. 5 as he and Gustus worked side by side during Gustus’ final week leading up to his Jan. 9 retirement date. It was during the Jan. 5 selectmen’s meeting that the defendants were served with summonses requesting their appearance at the Jan. 15 court hearing.

In between agenda items, as the board members were signing paperwork, Walsh requested through the chairman to address the board and proceeded to tell them that they were being summonsed to the Jan. 15 court hearing while his brother, John Patrick Walsh, quietly walked up to the desk and placed the paperwork on the table in front of each member and both T.A.s.

At the court hearing it was revealed that Mullen advised the three defendants as well as Terranova, Boudreau and Reid, that it would not be necessary for them to appear in court because their affidavits would suffice. Terranova was the only one who opted to attend the court hearing. It was also revealed that Mullen had been misinformed that it was Michael Walsh, not John Patrick Walsh, who had served the summonses in hand on Jan. 5. Under state law, a party to a suit cannot serve the actual summons to defendants, he said.

Michael Walsh requested that Cornetta allow him to have his brother testify that he is over 18 and not a party to the suit, making him eligible to serve the papers. Cornetta said he would not be accepting witness testimony. Walsh also offered to show the videotape of the meeting as further proof.

Cornetta said he was “interested in inquiring how the outgoing town administrator is enjoined as a party in defending this” and whether an allegation was being made that Gustus “participated in violating the Open Meeting Law?”

Walsh said as of Jan. 5, the date Gustus was served, he “was still an employee of the town” and “in his official capacity” that Gustus “allowed the board to circumvent the Open Meeting Law by using third party staff and polling” to provide “advice to the board.” Walsh said he wanted to call Terranova as a witness to confirm this allegation.

Mullen had argued that it was not proper to have Gustus named as a defendant in an Open Meeting Law case, which should be dismissed against Gustus because “he is retired from the town and was never a member of a public body subject to the Open Meeting Law.”

Mullen had further stated in his request for dismissal as well as his response to the OML complaint filed with the Attorney General Dec. 18 that in their sworn testimony to him the selectmen never discussed any aspect of their private, serial interviews with the seven finalists with each other. Separately, Crawford and Nelson shared their ranking of the final seven finalists with Gustus at his request while Terranova declined to share his rankings. Gustus did not share the rankings he was given with any of the selectmen, Mullen stated.

Motion session vs. evidentiary hearing

After the court hearing, Mullen explained to the Villager why he advised the selectmen and other town officials not to attend. “You don’t have witnesses unless you’ve got an evidentiary hearing. An evidentiary hearing is like a trial. At a trial there are live witnesses who are examined and cross examined. Motions at a motion session like this are handled very differently. It’s just lawyers arguing on the basis of papers.”

“There’s no role for the plaintiff, in my reading of the statute, to put on any case. Open Meeting Law says the plaintiff files a complaint and the burden is on the town to show that the complaint is not true,” Mullen continued, adding, “The summons on the short order of notice said that we were here today for a preliminary injunction and in Massachusetts preliminary injunctions are almost invariably granted or denied on the basis of affidavits, not on the basis of live testimony.”

In his motion to quash, Mullen states that in the affidavit provided by Town Clerk Trudy Reid she was served by hand in her office at town hall on Jan. 7 by Attorney Walsh “commanding her presence” at the hearing on the 15th, making it “ineffective” since Walsh is a party to the suit. Mullen also noted that this subpoena requested she attend with “33 categories of documents.”

Mullen believes this subpoena was overly broad and onerous as well as an attempt to do an “end run” around the public records law. Evidence sought included “records of all telephone calls between any telephone paid for by the town and any of the selectmen at any time; all e-mails between any town computer, e-mail address or server and any of the selectmen within the past 18 months, any correspondence between the Town Administrator and any of the selectmen with the past 18 months and any Open Meeting Law complaint filed within the last decade.”

Furthermore, the subpoena “seeks to force the town to produce documents of little or no relevance to any issue properly before the Court, at great expense, with no chance for reimbursement and without an opportunity to redact non-public information,” the dismissal request states.

Another argument posed by Mullen in favor of dismissal is the doubling up of the case in two venues simultaneously when he believes the Open Meeting Law provides a remedy to either the AG’s office or the court, but not both at once.

Willing to attend OML refresher

Mullen stated that the defendants had agreed to attend a training session conducted by the AG’s office on the OML and that both Boudreau and Gustus believe it is “wise for all board members to attend such training periodically,” adding they’d be willing to “resolve the case by attending such training without any admission of wrongdoing.”

As of Jan. 7, the AG’s office sent a letter to Walsh acknowledging receipt of the town’s response and remediation offer and unless an additional request is received by the AG from Walsh by Feb. 2, the AG will assume “the action taken by the town is sufficient.” If Walsh is not satisfied, a complaint could be filed with the AG “who may hold a hearing to determine if a violation has occurred,” adding this hearing would be required “prior to imposing any civil penalty,” Mullen said.

Mullen’s dismissal motion states that the “alternative” procedure is that either the AG or three registered voters may initiate a civil action in Superior Court. He stated that the two cases cited by the plaintiffs do not apply to this case. Namely the Conway decision forbids “private serial communications” among a quorum of a public body while the Lynnfield selectmen were not meeting in a quorum when they individually interviewed the seven finalists.

The Chatham decision, Mullen points out, involved “illegitimate executive sessions in the appointment process” after a preliminary screening. If finalists were to be considered “by the full body” then such sessions must be done in public.

‘A pound of flesh’

“If all they wanted was the substantive relief they sought there was no need for this hearing. They want a pound of flesh. They want to exact a political price,” Mullen told the Villager, adding that he believes the plaintiffs are hoping a court order is issued compelling the selectmen not to violate the Open Meeting Law in the future.

“It is already the law to say ‘don’t violate it,’ so what does it add? It means if there is even a small, technical violation, they’d face a complaint for contempt,” Mullen said. “It’s hard enough to get good, smart people to run for local office. We’re not going to make it any easier by telling them that the Sword of Damocles will hang over their head immediately upon them being unlucky enough to win.”