Select Board Amended Meeting Minutes 2/23/22

Amended Minutes of the meeting of 2/23/22

Meeting Opened at: 6pm

Select Board Members Present: Steve Weisz, Chair, Justin Makuc

Select Board Members present remotely: John Weingold (left abruptly at 6:53pm)

Also present: Jim Hunt, Gary Shaw, Terry Walker, Mickey Jervas

Also present remotely: Emily Johnson (signed in as Frank Upton), Paula Hartstein, Don Coburn, Susan Cooper, Jon Levin, Barbara Swann, Jon Sylbert, Hillel Maximon, Valerie Bird

Old Business

1. Jim provided the Board a revised “Highway Department winter road watch proposal for weekends and holidays” and explained the small edits made from last week’s version.  Steve inquired about the Nov 1 – May 1 timeline and asked if this proposal was only effective during that timeframe; Jim confirmed that is correct. The proposal for the winter/fuel stipend is $250 monthly, an additional $100/month per employee (additional $3k/yr).  The request for minimum call time is 4 hours, increased from the current 2 hours. Steve asked for an estimate using last year as an example for how much could be charged to the budget with the new policy; Jim does not have those numbers and added it would be hard to predict or analyze as it is weather dependent and there are a lot of variables. . It was confirmed that all costs would come out of snow & ice operations and Jim would not be requesting any additional funds at town meeting. The Board felt that the Finance Committee should weigh in on the financial impact of approving this proposal prior to its approval.  A motion was made to give the proposal to the Finance Committee for review, analysis and approval.  The motion was seconded and unanimously approved.
2. John stated he did more research on his suggestion to adopt Robert’s Rules of Order and confirmed that the information provided by Melissa Noe last week from the MMA Selectman’s handbook was in fact correct and the MMA does not recommend adopting Robert’s Rules.  John made a motion to adopt numbers 1-11 on pages 37-38 of the MMA Selectman’s handbook, “Suggested Rules of Parliamentary Procedure,” of the handbook.  Steve made a suggestion that this be brought up with the new board since we are currently operating in an atmosphere that if a ‘t’ isn’t crossed it gets reported and he feels it would not be helpful to adopt a new set of rules in the middle of budget season with a Selectboard that only has 10 meetings left.  Steve questioned, what happens if one if the items isn’t followed; will a report be filed with the state?  Steve felt that as long as things are respectful we are following the “Monterey Way” and we don’t need more layers of rules.  Justin thinks following these suggested rules of order from the MMA Selectman’s handbook would keep meetings orderly and on task.  Justin said he feels the Board sometimes gets off topic; which Steve said is human nature.  Susan Cooper felt in this case, item #11 speaks to Steve’s concerns that a minor error in rules does not affect the validity of an action and may help the Board by not incurring OML complaints. She was told that the adoption of these rules would not prevent OML complaints. Justin made a motion to adopt numbers 1-11 on pages 37-38 “Suggested Rules of Parliamentary Procedure” of the handbook for a while to see if they work and if not they can be changed or abandoned.  John then withdrew his original motion.  John seconded Justin’s motion.  The motion passed 2 -1 with Steve voting no.
3. John inquired what Attorney Greene's time summary was for the investigation.  Justin asked that before this item is discussed it be noted that it was his understanding that the lawyer instructed the Board to refrain from discussing any documents related to the investigation.  John then accused Steve (as per the invoice) of providing the investigator documents prior to his interview.  Steve asked John for more specifics. Justin stated that he was uneasy discussing the investigation in a public meeting. Steve made a motion to table the discussion.  The motion was seconded and approved 2 – 1 with John voting no.
4. Discussion of Employee Personnel Files maintenance & security: John wanted to know how Terry Walker’s resume got “leaked” to a resident.  Don Coburn didn’t understand why John used the word “leaked” when it was provided as a part of a public records request he made and all substantive information was redacted as per the public records law.  John also inquired how the Board can access the files and who maintains them.  Melissa let him know that if he would like to view them he can make an appointment with her, which he stated he would not do.

New Business

1. Town Administrator Items:
   1. Melissa was asked to read the relevant part of counsel’s response on appointment terms.  “In my opinion, the Town does not need to set finite terms of appointment for any of these positions, and indeed it may be uncommon to do so.  Rather, once appointed, the individuals in question may hold their respective positions until they leave of their own accord, or until the Town decides to separate them from employment after notice and an opportunity for a hearing, a right guaranteed to all public employees.  The general rule regarding public employment is that an individual whose employment is not for a term fixed by contract, state or local legislation, or other legal provision, is considered indefinite by default, and that “the power to remove…is an incident to the power to appoint.”  See Adie v Mayor of Holyoke, 303 Mass. 295 (1939).”
   2. A motion was made to approve the 1.3% increase for the FY23 employee Health and Dental Insurance Renewal.  The motion was seconded and unanimously approved.
   3. A motion was made to table the review of proposals for a Human Resource handbook update as we are still waiting on one additional proposal.  The motion was seconded and unanimously approved.
   4. The timeline for receiving citizen’s petitions and warrant articles was reviewed. Justin asked that the deadline to submit citizen petitions be posted conspicuously on the town website.
2. The Town Clerk witnessed the Board signing the truck loan documents and she sealed all necessary documents.
3. Town Clerk keeping posted office hours: John made a motion to table this item as it shouldn’t be discussed in this meeting since the investigation is still ongoing.  Justin explained that on October 21, 2021 Terry sent an email asking the Board to approve her working by appointment only.  Justin acknowledged that none of the Selectmen placed this request on the agenda for approval nor did anyone respond to Terry. Town counsel confirmed that this discussion should be in open session.  Justin thought the discussion should be postponed until the investigation has been completed and feels that the Board was negligent in failing to respond to the request.  Steve asked what the posted hours are.  A motion was made to table the issue.  Don Coburn commented that just because an employee requested something doesn’t mean the Select Board has to acknowledge it and added that an employee can’t just make up his/her own hours without approval.  Justin made a motion to accept the initial October request to work by appointment until the conclusion of the investigation.  John seconded Justin’s motion and it was voted on: Justin yes, John yes. Steve did not vote on this motion. Don inquired if this now means that the Clerk is being given permission to work for 30 minutes but bill us for 19.75 hours; Justin stated the position is hourly not salaried, and hourly employees are only compensated for hours which they work. Steve then offered a modified version of the motion that the Clerk can work by appointment only, as per her request of October, as long as the office provides adequate coverage for the residents of Monterey until the conclusion of the investigation. Justin said this was implied in his motion. Justin seconded Steve’s motion and it was voted on: Justin yes, Steve yes. John did not vote on this motion. John Weingold abruptly left the meeting at 6:53pm.  Terry stated that she has been working 19.75 hours so she is doing her job and people are calling her on her cell phone to make appointments.
4. Town Clerk failure to comply with public records request/J. Levin recommendations made in January 13 report to the Board: Justin stated that it was his understanding that appeals to a particular public records request should be made to the state, if a requestor feels that a request has not been fulfilled.Justin does not think that it is the Town’s job to deal with appeals to particular requests. Justin thinks the Board should follow Jon’s broad recommendations for the Town to send out a formal reminder to all Town employees clarifying to them what are public records and what their role is in maintaining them. Melissa then read the following from Jon’s letter, “I would recommend that the Select Board require Ms. Walker to (i) fully comply with the Public Records Requests and (ii) turn over to the Town (by copying and archiving in Town digital records) all emails, texts and documents in Ms. Walker’s possession (whether from personal or Town accounts or devices) which constitute Public Records as defined by the Statute (regardless of any applicable exemption) so that the Town has a full and complete Public Record of the communications and activities of Ms. Walker as a Town employee, and so that the Records Access Officer can review such records (and except with respect to exempt records), comply with the Public Records Requests.” Melissa asked the Select Board if it was going to act on the recommendations made in Jon Levin’s letter. Terry stated that she did not fail to comply with the Public Records Law. Jon Levin added that the underlying problem here is (which is not limited to just the Clerk)that employees and officials who use private emails and cell phones to conduct town business. Those documents within those devices are public records and need to be turned over to the town because the town is required to retain those records. Jon Levin stated that anyone who uses a private email or cell phone to do Town business, and is not regularly archiving those records with the Town, is acting illegally. If the employee/official refuses they are violating the law and can subject the Town to punitive damages of not less than $1k nor more than $5k.  Justin wondered how this could be accomplished in a way that promotes the retention of Town records within the reality of having a large number of Town employees and officials, and a limited number of Town phones and email accounts.  Jon Levin stated that you can’t have employees use private devices if they aren’t turning the records over to the town as they need to be made available for public inspection.  The Town needs to make clear the requirements to all boards, committees, elected officials, employees so the town has recourse if someone violates the policy.  If a Town employee is using a personal email or phone on a regular basis then the records on there are public and should be provided to the town on a regular and recurring basis. Don Coburn asked if the time limit for appeal was up, Jon was not sure specifically what Don was referring to. Jon wants the Select Boasrd to make a policy so that it can be enforced by the Select Board. Jon stated that the current lack of a policy prohibiting the use of private emails and cell phones should be remedied. Gary Shaw asked if there was a public records request against him as a member of a Board, and the RAO asked if there was information on his private cell phone and he said no, is that the end of the issue? Or would the RAO request his phone records. Jon Levin said that he would take Gary’s answer at face value and not request his phone records, but that if it was obvious Gary was using his personal email for Town business, then it would be a different issue. Terry then returned her town phone to the Board chair still in the box. Jon Levin explained that the ZBA conducts all business amongst themselves through the Town Administrator so that all communications are on file with the Town.  He explained that this is the easiest way for board to handle this, it doesn’t need to be complicated.  A motion was made to have Steve contact counsel for any existing Records Retention policies that we can modify to fit Monterey and for Melissa to reach out to her Small Town Administrators group to see what other Towns do to retain public records.  The motion was seconded and approved 2-0.  Terry then stated that she doesn’t use her personal email or phone for Town business but Jon Levin noted that there is evidence that suggests otherwise.
5. A motion was made to appoint Ilene Marcus, Justin Makuc and Tom Sawyer through June 1, 2022 to the parade committee which will be for Memorial Day and the 175^th birthday.  The motion was seconded and approved 2 – 0.
6. A motion was made to appoint Rebecca Wolin as a Library Trustee until the next election.  The motion was seconded and approved 2 – 0.  Tamsin Trelawny-Cassity withdrew her appointment that was made last week.
7. Warrant article for Lake Garfield Tax District: Steve stated that because both he and Justin live in the proposed Tax District, that they should avoid participating in this conversation to prevent any appearance of a conflict of interest.  Justin agreed to not act on the issue.  A motion was made to remove this item from the agenda and to note that any requests to add this to the warrant should be submitted as a citizen petition.  The motion was seconded and approved 2 – 0.
8. A motion was made to approve the amended minutes of 2/16/22.  The motion was approved 2 – 0.
9. Appointment Request Application: Justin wants to be cc’d on filled out appointment request applications submitted to the Town.  Steve personally did not want to receive all these emails (especially since now they all need to be archived) and felt that the Town Administrator could compile the information.  A motion was made to try out the Select Board receiving completed Appointment Requests.  The motion was seconded and approved 2 – 0.
10. Budget review
    1. Steve made a statement that the budget is a work in progress, no final decisions have been made thus any percentage increases being thrown around in public are not accurate.
    2. Steve reported that he attended the finance committee meeting last night and it was one of the most pleasant he’s ever been at, no one was disagreeable.  A lot of good discussions were had.
    3. There will be a joint meeting with the Finance Committee at 6pm next Tuesday.  An informational session has been tentatively planned for April 21^st.
11. Comments & questions from the public: None
12. Discuss entering executive session to continue review and consider approval of the following sets of Executive Session minutes: 10/4, 11/4 and 2/16  at 7:47pm.  A motion was made to go into executive session to approve executive session minutes.  The motion was seconded and approved 2 – 0.  Roll call was taken: Steve, yes and Justin, yes.  The Board stated that they will not return to open session.

A motion was made and unanimously approved to adjourn the meeting at: 7:47pm

Submitted by:

Melissa Noe, Town Administrator

Approved by:

Monterey Select Board

cc: Website (www.montereyma.gov)

Select Board Members

Minutes Book

Town Clerk

Any documents used in the meeting are listed below and are available by request at town hall.

1. Highway Department winter road watch proposal for weekends and holidays
2. pages 37-38 of Selectman’s Handbook & Abridged Guidelines for Parliamentary Procedure Taken from: Keesey’s Modern Parliamentary Procedure
3. Counsel opinion on appointment terms
4. Health and dental renewal
5. Handbook update proposal
6. Jan 13 letter from Jon Levin to the Board