BETHEL — Town attorney Zachary Brandwein of Bernstein Shur Law Firm, attended a special selectboard meeting on Wed. July 19, to advise the selectboard on its role.
Select Chair Meryl Kelly asked that public comments be held until the subsequent regular board meeting since this was a workshop. All the other board members were present: Sarah Southam, Patricia McCartney, Michele Cole and Frank Del Duca. Town Manager Natalie Andrews and Town Clerk Jessicca Grover were present as well.
Brandwein listed his specialties under the law: general municipal government, personal property tax litigation, and land use.
The board had submitted questions in advance that Brandwein said mostly dealt with the Freedom of Information Act (FOIA).
He said the selectboard is essentially the executive body of the town, that the town manager is like a CEO (or chief executive officer) and the selectboard is “the board of directors.” He said the selectboard oversees the town manager with policy directives but it is up to the town manager to run the town. The town manager is responsible for managing the town workers.
“Under your code the selectboard’s only task is to manage the town manager,” he said.
In a discussion about board members directing the town manager individually, he said, “You have to act as a unified – or at least by majority vote – body together. Legally no one selectperson can bind the town to any course of action…”
The attorney said nothing prohibits a one-to one conversation with the town manager, but that it is much better for those conversations to happen at the selectboard meeting.
He said the exception is that if, as a body, they choose one delegate to have the authority to talk one-on-one with the town manager and report back to the the rest of the board, that is acceptable.
“The best practice is to make sure that it is a consensus, that is a decision you have all reached together.”
Southam asked if the correspondence by the designated person should be received by the others via email or at the meeting. Brandwein responded that it should be received at the selectboard meeting because otherwise they would be crossing into into FOIA issues.
Meetings
“FOIA requires that you not have meetings, three or more of you, outside the context of the selectboard meetings. Because that [would be] an unauthorized, unnoticed, a ”not-public” meeting. It’s a real issue because it’s a violation of FOIA. From a policy perspective you’re not allowing the public to view your deliberations,” said Brandwein in response to Kelly’s question about what issues he sees with other selectboards.
Scheduling agendas is acceptable. Attending a social event with other members, but not discussing town issues, is acceptable, too.
“You are always wearing the select person’s hat,” he emphasized. “Public business is done in view of the public.”
The board plans to review its own rules and procedures since it is a new selectboard and this is typically done annually.
Communication
“The other purpose of FOIA,” he said, “is to ensure that all town documents are public records and they are accessible to the public if the public requests it. The substance of the communication is what matters, not the form of the communication.”
He said, if they are talking about town business no matter the form of communication – Facebook, Tik Tok, e-mail, etc. – it becomes a public record.
Executive Sessions
If the selectboard is discussing litigation, CEO (code enforcement officer) issues, labor negotiations, appointments, acquiring property, these and some others allow for executive sessions (or non-public meetings). Otherwise meetings must be held in public.
He said upon entering executive session they must cite the statute that exempts the public. Citing the statute is enough explanation for the public. It is not necessary to say, for instance, that it is a disciplinary hearing.
Executive sessions should be noted in advance by adding them to the agenda. During executive session there shall be no votes taken and no paper used, however, “you can reach a consensus,” he said.
Only the board can initiate an executive session. If there is a question about what is allowable, clarification should come from the town manager followed by town’s attorneys, if needed.
Conversation at executive sessions is confidential and should stay on topic.
In response to a question by Kelly, he said scheduling a public or board meeting to visit a town department is a better alternative to going on your own.
Brandwein said if they are in conflict, state law supersedes town ordinances and a town ordinance would supersede “rules and procedures.” He said the town must meet the state standard but there is some flexibility in the law.
Finally, the assessor board and planning board act independently from selectboard, he said.
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