Select Board Meeting Minutes 6/1/22

Minutes of the meeting of 6/1/22

Meeting Opened at: 6pm

Select Board Members Present Remotely: Justin Makuc, Chair and Susan Cooper

Also present: Terry Walker, Don Coburn, Adam Costa, Dennis Lynch, Chris Andrews, Ellen Coburn, Nancy Tomasovich, Peter Chait, Hillel Maximon, Gary Shaw, Adam Chait

Also present remotely: Heather Bellow, Paula Hartstein, Jon Levin, Kevin West, Richard Pargament, Peter Murkett, Michele Miller

Call to Order

6pm: Meet with Adam Costa of Mead, Talerman and Costa; appointment and engagement of Town Counsel and counsel contract. The Board has received a flat fee agreement from Mead, Talerman and Costa and had the following questions:

1. Billing for telephone and email is 2/10^ths of an hour minimum, but beyond the first 2/10ths, billed at 1/10^th of an hour increments. They would maintain this practice for accounting purposes but it would not affect the invoice for matters within the flat fee arrangement.
2. Scope of services attachment round trip travel billed from Millis office would be billed at the single blended hourly rate of $180 rather than a reduced travel rate.  Billing is usually calculated from the office that the attorney is located.  This would only be for items outside of the flat fee agreement.
3. Justin asked to confirm that for services inside the flat fee that this would include any legal research. Attorney Costa stated that legal research and how it is billed would depend on the type of question, but that the attorneys are generally experts and do not need to research for most questions.  
4. Justin inquired about labor and employment matters and where do the generic legal advice and assistance begin and end under the flat fee agreement.  Adam said that his firm is not in the business of nickel and diming their clients and values his firm’s reputation, but they are running a business.  Employment and labor is typically billed hourly with almost all of their clients due to the uncertainty in claims.  For a community like Monterey the retainer is so low compared to any other town to which they offer a flat fee arrangement that they feel they cannot include significant labor issues in the flat fee.  They have agreed they will provide generic advice (which he understands is a gray area) on what the law provides for and will provide advice.  When it goes beyond this, attending grievance procedures, arbitration, mediation, etc it requires a significant amount of time and would be billed hourly.  Attorney Costa referred to Attachment ‘A’ with regard to revisiting the scope and schedule to confirm the agreement is working for both parties in a year or so.
5. Susan asked about our handbook revision to make sure that a review of the end product would be included in the flat fee agreement.  Adam felt it would qualify as general labor and employment advice for review of the policies once they have been drafted.

The Board discussed the proposal which Susan noted she felt was fair.  Justin is concerned about the flat fee agreement and does not feel it is in the Town’s best interest. Justin believes that the many of the issues that Monterey is facing will be outside of the flat fee agreement and billed hourly, and the vast majority of the legal budget will already be committed to the flat fee agreement. Justin went back and reviewed the presentations and now feels Donna Brewer may be a better fit for our current situation and noted that, among other things, her proposal did not charge for legal research.  Justin feels that Talerman has made it clear that they do not feel they will be able to stay within Monterey’s budget and is afraid that we will end up paying hourly for the issues we are facing, and go well over budget. He feels that going with an hourly rate is the way to go regardless of which Town Counsel is selected, as it will give the Board the power to use Counsel judiciously and decide its own fate regarding bills. Susan noted that Donna Brewer’s hourly rate is more than Talerman and wanted to know if there were additional reasons why Justin prefers Attorney Brewer.  Justin noted that the Miyares and Harrington website states that labor and employment is one of their top five practice areas and that Donna Brewer is a very experienced labor and employment lawyer.  Justin prefers going with Attorney Brewer. With regard to MTC, Susan agrees that transportation costs might prove significant as well, with a single trip costing approximately $900.  Susan noted that as of today we are without counsel and the decision needs to be made tonight, Justin is not concerned about a momentary lapse.

6:30pm: Meet with Terry Walker to discuss Town Clerk posted office hours

Terry provided an email that she would work Thursdays 4-8pm, Fridays noon-8pm, Saturdays by appointment, Wednesday select board meetings with advance notice and then 7.75 hours worked at her own discretion from town hall.

Justin is willing to accept the hours proposed. Susan said this is a public facing position and from her perspective it is important to have office hours that are reliable and would like to see them during normal business hours.  Several people mentioned that they felt Saturday hours were also important since we have so many second home owners.  Susan will accept them provisionally until the handbook is revised and an HR Director is fully engaged.  Susan also feels that the days should be separated more to allow for time postings, etc.  Terry said it works out fine two days in a row, people can call her cell phone and she will come in by appointment.  Terry noted that she cannot work from home as all the computers are all here.  Susan asked if her assistant can work independently from Terry to get more coverage and she says that they both need to be here.  Terry mentioned that the only job function the assistant can perform autonomously is to post meeting agendas.  Susan will accept the hours provisionally. 

A motion was made to accept the proposed hours provisionally.  The motion was seconded.  Susan also reminded Terry that the Board is still waiting to receive ideas from Terry that the Board could enact to make town hall feel more hospitable for Terry.  Justin said going forward the Board is hoping to work in a positive direction.  The motion passed unanimously.

6:32pm the Board returned to the counsel discussion

Justin feels that Costa was clear that they would not be making any money with the flat fee agreement and feels that the issues Monterey has on the horizon would likely to be hourly rate issues.  He understands that Miyares & Harrington’s hourly rate is higher but Donna Brewer would be primary counsel and the labor and employment specialist, which would be a good fit for Monterey rather than working with two attorneys on a regular basis.  Susan said that she found both Miyares and Harrington and MTC to offer comparable and competent representation, and they both had positive references, although the MTC references were somewhat more glowing.  Justin feels that no matter who is chosen the hourly choice is going to be the better option for Monterey; Susan is not opposed.  Susan also is not opposed to Miyares and Harrington but noted that Miyares flat fee to Stockbridge is $48k and that should be kept in mind.  Susan does not want to be put in a situation where we do not have money left for town counsel and then not have representation for town meeting.

Justin made a motion to accept Miyares and Harrington’s proposal submitted by Donna Brewer and appoint as counsel effective immediately.  The motion was seconded. Nancy Tomasovich asked if Donna Brewer was open to negotiating the fee; Susan said she was not.  The motion passed unanimously.

Old Business

1. The Board reviewed the mediation proposal submitted by Quabbin Mediation.  Justin proposed to agree to one session between Terry Walker and Melissa Noe and one session between Justin Makuc and Melissa Noe, for a total cost of up to $500.  Terry Walker said she will not mediate and if the Board has any questions they should contact her attorney.  A motion was made to enter into an agreement for up to two sessions for Mr. Makuc and Ms. Noe, to be paid from Select Board expenses.  The motion was seconded.  Shawn Tryon said the Board has to do something with that problem and should force mediation.  Susan noted that forcing mediation is not generally a successful strategy.  We can document that it was offered and that the Clerk refused.  Susan is concerned that Terry has shown no indicated willingness to make any suggestions as to what would make her comfortable other than working outside normal business hours.  Justin feels that the Board is working forward with the recommendations made by the Greene Report, one of which was hiring professional mediation services.  Justin said that employment is a two sided agreement and is a process of building good will and trust, but it will be a long process.  Susan would like to have new counsel write a letter to Terry’s counsel.  The motion to hire Quabbin regarding the mediation for up to $500 for up to two sessions between Justin Makuc, Ms. Walker and Ms. Noe passed unanimously.
2. The Board reviewed the draft ten point plan based on recommendations made by the Greene Report to the new draft nine point plan with Justin’s changes.  Justin made a motion to adopt the nine point plan as presented tonight.  The motion was seconded.  Chris Andrews asked if this would now obligate the Board to follow this plan and how long this document has been available.  Justin noted he drafted it in March and they have been working on it since the beginning of May, and would work on the goals listed but that no one else was holding the Board accountable to these goals. The motion to accept the nine point plan was passed unanimously.
3. Justin moved the Fiber Connect agenda item up in the agenda so as to not to keep Adam Chait any longer. Susan inquired about the “homes passed” and “homes”.  “Homes” is the number of homes on the street and “homes passed” is the number of homes that have service available to them. Currently 201 homes have service available to them and 125 are left to pass in milestone 3. A motion was made to sign and certify the Grant Payment Request and Certification for Milestone 2 document.  The motion was seconded.  The motion passed unanimously.
4. Justin moved the grant proposal request agenda item up in the agenda so as to not to keep Mr. Lynch any longer. Dennis is proposing to write a grant through the Municipal Energy Technical Assistance Grant Program (META) offered through the MMA Department of Energy Resources which we can receive up to $12,500 with no town match to seek technical assistance for the installation of roof and/or ground mounted solar photoelectric arrays to generate renewable electricity to help operate town facilities.  Peter Murkett was concerned about the obligation to use the consultant the State specifies if we were successfully awarded the grant. Justin asked that since the Renewable Energy Working Group already had consultants in mind would it make sense to push this off until Peter and Dennis could work this out.  Susan asked if there was a ballpark figure for how much the solar installation project price would be and maybe the $12,500 would not be enough. Dennis explained that the grant would cover the feasibility study it is not for the actual work.  The item will be returned to once the REWG and Dennis have had a chance to figure out the impact it could have on choice of consultants.
5. Justin suggested August 23^rd from noon – 7pm for setting a special election to fill the Select Board vacancy. Justin did confirm with the Clerk that the voting machine should be updated in time for the election but we may be required to purchase an additional chip for approximately $1000.
6. The Board reviewed and discussed the amended draft Select Board policy regarding written follow-up letters after public meetings. A motion was made to adopt the edited version.  The motion was seconded and unanimously approved.
7. Update on KP Law bill: The bill has been edited and we owe $3,003 more than the usual flat fee because of expenses billed at an hourly rate.  A motion was made to pay the $3,003 out of litigation expenses.  The motion was seconded and approved unanimously.
8. Greene & Hafer bill: This item will need to be brought to new town counsel to advise.  Susan does not believe we will get out of having to pay the bill, even though she does not feel the report was worth it.  Justin agrees that we are probably obligated to pay it.  Susan said it might be worth getting a legal opinion to determine if we are obligated to pay it. Don Coburn said personally he does not think the town owes the money but the decision is a legal one that the Board cannot make.  He also stated that they should ask if the town has a claim for negligence for such a poorly written report. Susan agreed that we should seek legal advice regarding payment of the bill. Nancy Tomasovich felt that counsel would have to review all the complaints and documentation that the report was created from would cost an extreme amount of money. Ellen Coburn said she recalls that the Board made a statement that the total amount that was approved was $16k.  The Board agreed to have Justin ask Donna Brewer about the town’s obligation to pay anything over $16k.

New Business

1. Town Administrator Items:
   1. A motion was made to sign the Rural and small town development letter of support. The motion was seconded and unanimously approved.
   2. Melissa updated the Board that an offer has been made for the Shared Human Resource Director and they have until Monday to respond.
   3. The Board agreed to purchase a new conference table and five chairs for the meeting room to replace the shabby ones there now that are falling apart.
2. A motion was made to approve the special permit request for the Bidwell Country Fair on June 25, 2022.  The motion was seconded and unanimously approved.

Correspondence, minutes, public comment

1. Review mail & correspondence received or to be sent:
   1. Review letter received from the Law Offices of Timothy M Burke regarding Terry Walker. Justin feels it would be prudent to not have extensive discussion on the topic to avoid any future, potential liability.  Susan felt that a discussion with the insurance counsel should be scheduled as soon as possible.  Melissa will schedule a meeting with our insurance representative.
2. A motion was made to approve the amended minutes of 5/16/22.  The motion was seconded and unanimously approved. A motion was made to approve the amended minutes of 5/18/22.  The motion was seconded and approved unanimously. The minutes of 5/23/22 and 5/25/22 will be tabled to next week to allow Justin time to make edits.
3. Comments & questions from the public: none

A motion was made and unanimously approved to adjourn the meeting at: 8:05pm

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. Talerman, Mead and Costa proposal
2. Terry Walker’s hours proposal
3. Mediation proposal
4. Special event request
5. Fiber Connect Milestone 2
6. Grant Proposal
7. Nine Point Plan
8. Draft Select Board policy regarding written follow-up letters after public meetings
9. Letter received from the Law Offices of Timothy M Burke