Select Board Meeting Minutes 6/29/22

Minutes of the meeting of 6/29/22

Meeting Opened at: 5:01pm

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

Finance Committee Members Present: Frank Abbott, Michele Miller

Finance Committee Members absent: Katrina Fitzpatrick

Bylaw Review Committee members present (at 6:00pm joint meeting): David Myers, Mari Enoch, Pauline Banducci, Jeff Zimmerman

Bylaw Review Committee members present remotely (at 6:00pm joint meeting): Stuart Litwin

Also present: Mickey Jervas, Mary Makuc

Also present remotely: Don Coburn, Martin Mraz, Donna Brewer, Paula Hartstein

5pm: Joint meeting with the Finance Committee

1. Review and discuss Annual Operating Budget Policy Draft: The Finance Committee submitted an amended version for the Board to consider which is similar to the way the process has worked for the last 2 years.  Discussion ensued.  Justin will make further edits for the joint meeting to consider next time they convene.
2. The Finance Committee and Select Board reviewed and discussed the draft Purchasing Policy.  The Boards discussed adding the procurement chart to the policy.  Melissa will take this back and incorporate the items everyone would like to see added prior to the next meeting.
3. Motions were made to raise spending limit for Bally Gally by $154 to pay for 2 Terminix bills.  The motions were seconded and unanimously approved by both the Finance Committee and Select Board.
4. Motions were made to approve the following transfers: $10.68 from snow and ice overtime to Medicare, $270 from snow and ice overtime to fire department compensation, $406.63 from snow and ice overtime to Director of Operations, $0.04 from snow and ice overtime to Sanitary Inspector, $213.71 from snow and ice to Berkshire Regional Planning, $1,628 from snow and ice to tree warden expenses, $747.07 from storm damage to fire equipment and maintenance, $2,458.26 from storm damage to fuel, and to amend the previously approved transfer for $1,278.30 to come from snow and ice instead of Select Board expenses.
5. Library employee hourly rate change for FY23: Justin recused himself and left the room as it has a direct financial impact on a direct family member. Melissa Noe asked the Board to make a determination on the library trustees electing to take the salaries approved for FY23 and distribute the 3.8% COLA given to all employees unevenly (2.4% to the Director and 5.8% to the 2 employees). Mickey Jervas stated that the Trustees feel that the law gives them considerable discretion in the use of the funds they are given, and as they are staying within the Library Wages granted them by Town Meeting they may distribute them as they see fit. Susan explained that she is concerned that the reassignment of funds may result in friction between the Library Trustees and the Finance Committee.  Susan personally feels that a better option would be to use $1,000 of American Rescue Plan Act funds to give the library staff a one time bonus in light of their service during COVID. Michele explained that the library was told during budget presentations when they asked for more money for additional COVID responsibilities that everyone was getting an across the board COLA increase of 3.8% and that all departments had experienced additional, unexpected duties related to COVID. Michele said that it disturbs her that the Boards went to the town with a budget and said that all employees would be given 3.8% and she questions the precedent this sets for doing something different than was approved.  Don Coburn then stated that Susan cannot vote on this alone and Justin can invoke the Rule of Necessity.  Attorney Brewer said that Don is right and the Rule of Necessity has to be invoked because a Select Board cannot operate as a board of one.  Justin Makuc returned and stated that the Library Director is his father and the outcome of this impacts his father’s financial status no matter the outcome but he is confident he can rule on this fairly and not based on his relationship, so he’s invoking the Rule of Necessity. Justin felt that since the Trustees stayed within the amount of money approved at Town Meeting, their authority over the library staff and building should be respected.  Susan reviewed the Annual Town Meeting minutes and found no hold placed on Library Staff Wages, nor any mention of COLA raises or discussion regarding this matter at Meeting.  The only record she found regarding COLA adjustments were two sentences in the minutes of the 3/22/22 Finance Committee minutes. Mickey believes the Trustees acted in good faith and honorably to recognize the work the employees have been doing. Susan asked that it be noted in the record that she is very happy that the employee handbook will be redone this year so that a structure is in place to allow for compensation adjustments based on performance as well as COLA.  A motion was made to respect the Library Trustees decision as to library staff wages for FY23.  The motion was seconded and unanimously approved.

A motion was made to adjourn the Finance Committee portion of the meeting.The motion was seconded.Don asked if the Finance Committee was short one person; Michele noted they are not, one member has been unable to attend while transitioning to a new job.The motion was approved unanimously.

6:17pm: The Board met with the Bylaw Review Committee and Town Counsel to discuss the following:

• Q: What is the difference between an ordinance and a bylaw? A: Ordinance is for a city and bylaw is for a town. Monterey will only be adopting bylaws.
• Q: Are bylaws about governance of town or can they be specific, such as the fine for parking in the wrong space? A: Bylaws generally do include a fine schedule.  Policies and regulations can be changed by the adopting Board or Committee, whereas bylaws need Town Meeting approval.
• Q: Monterey has a lot of fines throughout our bylaws and the Committee wants to know if they can have the Select Board approve a class of fines schedule which they could modify without Town Meeting approval? A: Attorney General approves all bylaws and the bylaw has to have a specific figure to fine someone, it can’t be an “up to” fine.
• Q: What is the charge of the Bylaw Committee? A: Justin stated that it is what was approved at town meeting which was, “…tasked with reviewing the town’s bylaws, proposing revisions and additions thereto…”
• Susan would like to make sure that the most current and up to date bylaws be posted on the town website.
• Donna noted that the bylaws should all be included in one document and not be separate documents.
• Q: Some items that are currently called bylaws and are in our bylaw compilation are not actually bylaws but just tabulations of votes at Town Meetings of the past: A: Was it submitted to the Attorney General (AG) for approval, as all bylaws have to be approved by the AG? 
• Q: Are local statutes that have been locally accepted bylaws? A: No they should be listed in a document as locally accepted statutes and general acts.
• Q: How would this appear on a Town Meeting warrant as it would be a lengthy document? A: The changes can be done as an exhibit or attachment to the warrant, it doesn’t need to be a part of the warrant it just needs to point the voters to where the full text is available.
• Q: How would the process work at Town Meeting? Does each change need to be voted on individually? A: Usually one motion on the entire change is made but you could also go section by section if the Moderator so chooses.
• Q: We have a bylaw with peddler’s licenses, is this a legal bylaw? A: Donna would need to research this further.
• Q: If the committee finds a bylaw that was voted but never submitted to the AG or we cannot prove it is a bylaw what would they need to do? A: It could be submitted to the AG for approval now, the Clerk just needs to send the certified voted to the AG.
• The Board noted that going forward it might be best to put the Committee’s requests in writing as getting answers in writing from Counsel might best serve the committee.
• The Committee’s struggle has been the Open Meeting Law and reviewing documents that have been edited.  The Board discussed possible solutions for making this a little easier to address in their meetings.

1. The Board discussed setting a deadline for American Rescue Plan Act (ARPA) requests and reviewed the draft form for disbursements.  This will be tabled to next week to allow Susan time to review it.
2. The Board reviewed a draft letter to the new Human Resource Director laying out Monterey’s initial goals. Susan thinks it will be worth adding that feedback from her will be important on reasonable expectations for prioritizing the list. A motion was made to approve the letter as amended.  The motion was seconded and unanimously approved.
3. FY23 appointments and reappointments: Prior to making any appointments Susan would like the following questions clarified by Town Counsel; 1. What specific positions are appointment/reappointments required for under MGL and please provide the exact provision. 2. If a position is contracted with an outside agency do we still need to make an appointment/reappointment (specifically referring to the Accountant and Treasurer positions) and if we still must appoint, shouldn’t the appointment be for the firm rather than an individual? 3. Can the responsibilities for the field driver and fence viewer be given to the Building Inspector?
   1. Ellen Coburn asked what reappointment means if there is no effect on discipline or dismissal? Justin responded that the Board has the power of appointment and removal and Justin feels it is good to know who is responsible and in some cases it is a legal requirement. The process to remove an employee is the same whether the employee has an indefinite appointment or a termed appointment. Ellen added that very often an employee will say/believe that a reappointment is a vote of confidence and in her opinion in the case of the Clerk who is refusing to mediate, refusing to hold normal public hours and possibly suing the town, would not a reappointment say that all this is ok?

The following appointments were made for the terms noted:

Terms expire on the following dates:

6 months – 12/31/2022

1 year – 6/30/2023

2 years – 6/30/2024

3 years – 6/30/2025

1. The Accountant would like clarification on whether the assessment approved for the Southern Berkshire Ambulance using ARPA funds should be invoiced or treated as a sub grant recipient. Justin will follow up with Counsel.
2. Town Charter Committee status: Melissa was asked to readvertise the vacancy with a deadline to respond of July 21st.
3. The Board announced for the record that the Johnson case was settled in November. Don Coburn took issue with the fact that the Board would not disclose the settlement amount.
4. Town Administrator Items:
   1. Melissa reported that Title V results were received for the Town Hall septic field and there are some minor repairs required, such as replacing some sewer line and the SAS vent pipe.  The system has also been pumped.  The Title V inspector does not have any concerns with a playground being located over the field, as long as the work is not deeper than 2’ below grade.  The results have been forwarded to the Parks Commission as well.
   2. Massachusetts Commission Against Discrimination Sexual Harassment Policy recommendation from Counsel: Donna read our current policy and felt it was lacking and put this example forward as what ours should be.  Susan recommended adopting this and Justin agreed.  Melissa will work up a draft copy for a future meeting with Monterey’s information inserted.
   3. Melissa provided sample Town Counsel contact forms from two other towns in MA. Justin will work on implementing a form into the current contact policy for review at the next meeting, striving toward the goal of a one page form that includes both the guidelines and the request form
   4. Melissa and the Treasurer are recommending that we sign up for the timecard and attendance module offered through our payroll software.  The implementation fee will be $650 and then the monthly fee is based on the number of employees using it.  The Treasurer and Melissa would like to slowly roll this out starting with the Town Administrator and Highway Department and then move to the Clerk, Tax Collector and library staff followed by all the other departments.  A motion was made to move forward with the timecard and attendance module.  The motion was seconded and unanimously approved.
5. Review mail & correspondence received or to be sent:
   1. Letter re: Open Meeting Law (OML) Complaint dated June 23, 2022 noting that they consider the OML complaint filed by Don Coburn closed.
   2. Letter re: Electricity on Sandisfield Rd dated June 27, 2022: Justin said that we should be receiving a pole petition from National Grid soon.
   3. Letter re: State 911 Department dated June 27, 2022 sent to Ellen Coburn. Susan is still working with Verizon and the Fire Chief to try and resolve the gap in service issue.
   4. Email from the Clerk asking if we contacted her attorney as she suggested when she refused mediation.  The Board feels that Ms. Walker was asked to participate in mediation and declined, and thus no further action is necessary
6. The approval of any draft minutes was tabled to the next meeting.
7. A motion was made to release the previously approved 5/4/22 Executive Session minutes.  The motion was seconded and unanimously approved.
8. Susan would like to inquire of Counsel how to allow participation in hands on, volunteer, built projects without making it onerous on the Town or volunteer. Justin will forward the question.
9. Comments & questions from the public: none

A motion was made and unanimously approved to adjourn the meeting at: 8:23pm

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. Draft annual budget policy
2. Draft purchasing policy
3. Draft ARPA form
4. Draft letter to new HR Director
5. Sample town counsel contact forms
6. Letter re: Open Meeting Law Complaint dated June 23, 2022
7. Letter re: Electricity on Sandisfield Rd dated June 27, 2022
8. Letter re: State 911 Department dated June 27, 2022
9. Email from the Clerk on mediation