Chester Select Board rejects Open Meeting Law complaint, pulls Australian ballot articles

By Shawn Cunningham
©2015 Telegraph Publishing LLC

The Chester Select Board heard from the town’s attorney regarding The Chester Telegraph’s complaint of a violation of Vermont’s Open Meeting Law and the board removed the questions regarding Australian ballot voting for all questions from the Town Meeting warning at its Jan. 21 meeting.

Town attorney Jim Carroll speaks to the Select Board. Cynthia Prairie photo.

Jim Carroll, attorney for the Town of Chester, appeared before the board to say that while they could have entered executive session from the Nov. 19 meeting using a stronger exemption to the Open Meeting Law, he felt he could make a good argument for the exemption that was used. He also asserted that recent changes in the law make this uncharted territory and the only way to get a definitive answer would be to go to the Supreme Court.

Carroll, who in effect is the Select Board’s lawyer, urged the board to waive attorney-client privilege to discuss the matter in an open meeting.

The Telegraph’s complaint alleged that the board had shielded its discussion of “the initial concept” of a real estate deal involving the water department and gravel extraction from public view, pointing out that such discussion did not qualify as “negotiation.” Negotiating real estate purchases is one of the reasons a public board can use to exclude the public at a meeting.

Carroll asserted that two parties weren’t needed to make a session a negotiation, but felt that using the exemption for “contracts” rather than the exemption for “negotiating” a real estate purchase would have been stronger.

“I don’t know that I can interpret the law at this level,” said board member Derek Suursoo noting that these were “very fine points.”

The Telegraph’s complaint requested that the board enact policies to govern the use of executive sessions. Carroll rejected that idea saying that “policies need to work under all possible situations.” He added that he had reached out to other municipal attorneys and the Vermont League of Cities and Towns but that hadn’t yielded anything that would “help in any practical way any more that the statute itself.”

The VLCT offers its member municipalities advice and training and serves as a lobby for the interests of local governments. Its legislative agenda for this year includes measures that would limit access to public records and loosen posting requirements for minutes of public meetings.

Board chairman John DeBenedetti asked if it might be necessary for the board to call its attorney every time it feels an executive session is warranted. Calling that option “prohibitively expensive,” Carroll said, “These issues aren’t that simple, even for the town attorney. Perhaps the league (VLCT) can be helpful.”

Chester Telegraph publisher Cynthia Prairie noted that the exemptions that allow a board to go into a closed door session are relatively simple and, when in doubt, the board should err on the side of openness in doing the public’s business. “Ask yourselves, do we really need to,” said Prairie.

Chester Telegraph publisher Cynthia Prairie noted that the exemptions that allow a board to go into a closed door session are relatively simple and, when in doubt, the board should err on the side of openness in doing the public’s business.

In seven meetings between Aug. 20 and Nov. 19, 2014, the Chester Select Board held six executive sessions with a total duration of 12.5 hours. DeBenedetti noted that there’s always 15 minutes of sitting around waiting for the SAPA-TV equipment to be removed and board member Tom Bock mentioned that senior members of the board often take bathroom breaks. DeBenedetti also mentioned that the executive sessions held to work on the annual review of town manager David Pisha, who has been in that post for six years, were especially long owing to the board deciding to change evaluation forms midstream thus nearly doubling the the process.

“This board discusses a great deal,” said Suursoo. “There are five strong personalities here … we had five opinions (on the Pisha review) and we had to hash it out to achieve consensus.”

“I know there’s a great deal of curiosity about what we do,” Suursoo continued. “I don’t know how to answer that. The time isn’t spent here doing fluff.”

“This is a learning process,” said DeBenedetti, “I, as a lay person, couldn’t possibly figure this out.”

Using a 240-word motion crafted by Carroll, the Select Board voted unanimously to answer the complaint by saying that it could have used a better reason for holding the closed door session, but that it acted in good faith and that no policies regarding executive sessions are warranted.

The board then used another Carroll-crafted motion to enter into executive session to discuss a settlement agreement in a lawsuit against the management of the Pleasant Brook Apartments. The executive session began at 9:14 p.m. and ended at 9:36. A motion to accept the settlement agreement passed.

Australian ballot articles removed, hiking trail moves forward

In other business, the Select Board read the official warning for Town Meeting, which included articles to ask if voting for the budget and other issues should be done only by Australian ballot. “I’m not sure we’re not making problems with this,” said Suursoo regarding the articles to change the election procedures. “The voters turned this down fairly recently.” After a discussion, Suursoo moved that both election related articles be removed from the warning. The motion passed unanimously.  You can read about the Articles to be addressed at Town Meeting here.

Frank Kelley appeared to talk about the grant to build a hiking trail behind the Academy Building and the Brookside Cemetery. Julie Hance, assistant to the town manager, assured the board that there is no financial match for the town. Some in-kind work may be required by the town highway crew, but the bulk of the match will consist of work done by the Chester Conservation Committee, the Vermont Youth Conservation Corps and volunteers from the general public. Board member Arne Jonynas called the prospective trail a great asset and moved to authorize the grant application. That motion passed unanimously.

David Pisha reported that negotiations on an AT&T tower modification and lease amendment had been concluded and the contract reviewed by counsel for the town. Currently, AT&T pays $6,000 per year (with no annual escalator) for the use of the Pinnacle tower. If approved, the company would make improvements to the tower and pay $11,000 per year (with a 2 percent annual escalator) and add a five-year option to the 20-year lease. The board approved the proposal.