OFFICE OF THE SELECTBOARD
Town of Halifax, Vermont
SELECTBOARD REGULAR MEETING MINUTES
August 10, 2020
Call to Order
The meeting was called to order at 7:00 p.m. Selectboard members Lewis Sumner and Mitchell Green, Moderator Paul Blais, and Robbin Gabriel were gathered in the Town Office conference room. Selectman Bradley Rafus was not able to attend. Linda Lyon, Everett Wilson, Peter Silverberg, Chris Mays (Brattleboro Reformer), Edee Edwards, Chris Parkins, Lesley Pollitt, Earl Holtz, Penfield Chester, Kathleen McLean, Susan Kelly, Cara Cheyette, Norman Fajans, Tina Blais, Douglas Parkhurst, Marilou Parkhurst, Marilyn Allen, Marketa Psenickova, Patrick Eck, Rhonda Ashcraft, Tristan Roberts, Robert Teree, Janice Bliss, and Scott Ashcraft (who joined the meeting at 7:37) participated through remote teleconference access.
Immediately after Lewis Sumner opened the meeting, Paul Blais outlined instructions for participating, and meeting protocol and standards.
Changes and/or Additions to Agenda
Open Sand Bids
Sumner advised the Town has received two sand bids, as follows:
Cersosimo Industries, Inc., Brattleboro, Vermont: 4,000 cubic yards ¾” winter sand, $8.25/cy picked up at River Road pit; $13.50/cy delivery; total delivered, $21.75/cy. Total cost picked up, $33,000. Total cost delivered, $87,000.
Zaluzny Excavating, Inc. Vernon, Vermont: 4,000 cubic yards ¾” winter sand, $9.45/cy picked up at pit, or $19.45/cy delivered. Total cost picked up, $37,800. Total cost delivered, $77,800.
Sumner told Green the two pits were about the same travel distance, and the Town, on average, trucks about half the year’s sand. Green made a motion to approve Cersosimo’s bid of $8.25/cy picked up, $21.75 delivered. Sumner seconded the motion, which passed, 2-0.
Sumner advised a lawsuit, a declaratory judgment complaint, has been filed against the Town. Sumner made a motion to turn the complaint over to the Town Attorney and request him to prepare a response to the court. Green seconded the motion, which passed, 2-0.
In discussion before the vote, Sue Kelly asked who was present at the meeting—specifically who was present in the Town Office conference room. Blais said he, Lewis Sumner, Mitch Green, and Robbin Gabriel were present.
Kathy McLean asked, referring to the sand bid, if we had a cost for the equipment and men to truck the sand. About $10 a yard, answered Green; that’s a figure Brad (Rafus) calculated; that includes equipment and man hour costs. McLean said she’d had a conversation with Rafus and understood the $10 figure represented a cost per mile (fuel), and labor costs, and did not include cost of vehicle leases and accelerated depreciation due to additional mileage. Also, she added, when the men are trucking gravel they aren’t maintaining the roads, and we fall behind on general maintenance. McLean thought the town should truck half the gravel and have the vendor truck the other half. At this point Blais said there was a motion on the floor about the lawsuit, so he asked that the sand discussion be continued later, under hearing of visitors.
Norman Fajans asked if Town Attorney Bob Fisher was on the line tonight; the Board and Moderator said no. Fajans wanted to know if Fisher had any comments on the lawsuit and how he was going to proceed. Sumner said there would be no discussion, as it is a lawsuit. Are you (the Board) going to direct him (Fisher) how to proceed?, asked Fajans. Fisher has handled many lawsuits, answered Sumner; he’ll know how to proceed. Fajans asked again if there would be any direction from the Board, and Green said if Fisher had any questions he would call. Sumner agreed.
Marilou Parkhurst wanted to know the name of the lawsuit and who was filing it against the town. The document is headed Complaint for Declaratory Judgment, said Blais, and Marilyn Allen and 40 others are listed as plaintiffs. Parkhurst asked for details, and Blais said the issue was a dispute over Brad Rafus’ resignation, and whether his verbal resignation created a vacancy.
Sue Kelly stated that as the lawsuit is against the Town, not the Selectboard, the process should be discussed in open meeting. We can’t discuss litigation, responded Green. Kelly also asked about Rafus’ absence, and if he was still regarded as a Selectboard member. He is still a Board member, replied Green; he wasn’t able to attend tonight.
Cara Cheyette disagreed with the premise that there could be no public discussion of a lawsuit. She recalled a declaratory judgment action brought against the town by Russell Denison which was discussed in an open Selectboard meeting (December 15, 2016) with Attorney Fisher in attendance. Why would this be treated differently? Green said he would have to research that earlier action, but the Board’s normal practice is not to discuss lawsuits in process.
When the Town Attorney takes on a case, asked Linda Lyon, does he represent the best interests of the Town, or of the Selectboard? It would be the Town, answered Green; the lawsuit is against the town.
Earl Holtz wanted to know who was attending this meeting. Blais named Sumner, Green, and Gabriel, and said there was a list of people participating by teleconference. He did not give names of the participants, saying it was not germane and he was calling a point of order. Holtz said this was a lousy way to hold a meeting, especially for someone hearing impaired. Why can’t we just meet back at the garage like we did before?, he asked. It was the well-voiced will of the town to go to remote teleconference meeting, Blais responded. Blais said he was aware a few people had trouble hearing at the last meeting, and he is obtaining a microphone for use at future meetings. Holtz asked if some people could come to the town office, and the Board said no; the room is not big enough, and we can’t pick certain people. The requirement is ten foot square per person, said Blais. He then tabled the topic and said it could be addressed again under hearing of visitors, as the lawsuit was the current topic on the table.
Chris Parkins requested the legal language of the lawsuit, or a statement of what outcome the plaintiffs are looking for. It is basically asking the court to clarify Rafus’ resignation, said Green. Parkins asked if the document could be posted somewhere so people could know what was in it. Cara Cheyette offered to help with an explanation. Green said the document was available from the court. Parkins would like to have it posted on the town website; the Board said they would ask the attorney’s advice on that.
Marketa Psenickova said her question on the reason for the lawsuit had been answered, and Patrick Eck asked just what the process would be that would decide whether Rafus’ resignation was valid or not. That’s up to the court, answered Green; they will determine that.
Cara Cheyette said that because there were questions and (Town Attorney) Bob (Fisher) was not on the phone, she would offer some clarifications. A declaratory judgment action seeks a declaration from the court that the law is a particular way based on the facts, said Cheyette. A lawsuit usually means the plaintiffs are seeking money damages. That’s not what this complaint seeks; it seeks a declaration. The summary of the complaint is that “forty-one Halifax residents seek a declaration that the Halifax Selectboard violated the law in its handling of a recent Selectboard resignation. This violation of the law was the culmination of months of controversy concerning the Selectboard’s breach of the public’s trust and what many believe was a misuse of public funds. That controversy was sparked by two Selectboard members agreeing to purchase property from the third member—the member whose resignation is the subject of this complaint.” The plaintiffs are seeking a declaration from the court “that Brad Rafus’ June 26th resignation created a vacancy and thus his July 21 rescission was void; [that the court ] “Order the Halifax Selectboard to post the vacancy and to fill it by appointment following a fair and open process;” and [that the court] “Order the Halifax Selectboard to warn a special town meeting so that the voters of the Town can fill the vacancy by way of an election, which meeting must be warned at the earliest . . .” possible date in light of when the vacancy petition was submitted. That, Cheyette concluded, is the overall structure of the declaratory judgment complaint. (Quoted text is from the introductory paragraph and the Requested Relief section of the filed complaint.)
Sue Kelly returned to Cheyette’s earlier comment regarding open meeting discussion of a declaratory action against the town in 2015. She believes that as the current lawsuit is against the town, the public should have an opportunity to discuss the lawsuit with the Town Attorney in open meeting, including options for a response to the court. The lawsuit is against the town, responded Green; the Selectboard takes care of town business, therefore that’s our job, to take care of it.
After the vote, Kathy McLean asked Paul to repeat what Green had said in response to Kelly’s comments, and Linda Lyon requested that the complaint be posted on the town website. Blais said that question had been answered earlier—the Board will solicit the Town Attorney’s advice.
Spring Landfill Test Results
Sumner announced the Board has received the results of the May 28, 2020 landfill monitoring well tests. It’s a little higher than it was last fall, said Sumner, but it is lower than it has been for the last couple of years in the spring. It’s always a little higher in the spring than in the fall. Next test will be in October. The report shows a spring level of 116mg/l, which is higher than State permitted levels but lower than the 227mg/l test results from spring 2018. Paul Blais solicited questions and comments. Will the test results be posted on the website?, asked Edee Edwards. Yes, said Sumner; he also told her that one private well (the Rafus well) was tested this spring in addition to the landfill monitoring well, and that result was negative. Edwards had questions about testing on other adjacent properties, on Branch Road for instance. Sumner said wells on several abutting properties have been tested, all with negative results, and the Board would consider testing other wells if property owners made that request. Edwards said she might be interested and would communicate with the Board further.
Sign Dog Warrant
Town Clerk Patty Dow has submitted the yearly dog warrant to the Selectboard. Sumner explained that the Board signs the document, which then goes to the Constable who contacts owners whose dogs need rabies shots and licensing. Sumner made a motion to sign the 2020 dog warrant and deliver it to the Constable. Green seconded the motion, which passed, 2-0.
Sumner announced that hopefully tomorrow the recycling bins will be relocated from their current Brook Road spot to their new location in the Town Garage yard at 2044 Branch Road.
Hearing of Visitors
Kathy McLean spoke of the concerns she had expressed earlier, during the sand bid discussion—that cost calculations for trucking did not take vehicle wear and tear and man hours into consideration. It costs three dollars more for the vendor to truck the material, and McLean believes the cost for the town to do the trucking is actually more than that, and it also causes the highway crew to fall behind on town road maintenance. McLean asked if the Board would reconsider, and have the vendor truck at least half the sand supply. We already do have them (vendor) truck half of it, or more, responded Sumner. The town crew only draws sand with town trucks when the weather is bad and they can’t be working on the roads.
Blais invited Earl Holtz to speak of his concerns about remote Selectboard meetings and hearing difficulty. Holtz said the latter half of this meeting has been easier to hear, but he still feels the only way to go is an in-person meeting. He also thinks the lawsuit document should be posted on the website. Green said the Board would be seeking the town attorney’s advice about posting the lawsuit online. He also said he, too, would prefer in-person meetings, but that was not possible in the current circumstances. Blais commented that when we did hold the meeting in the Town Garage yard where everyone could be present, he was able to utilize the PA system so everyone could hear, but there were still concerns about people with diminished immune systems. The technical limitation is the Town Garage internet access, which does not have sufficient bandwidth to support remote access in addition to in-person attendance. Holtz responded that he understood all that, and even though he was one of those individuals with immune system deficiency he wasn’t happy with the situation. We’re doing the best we can with what we have to work with, said Green.
Bob Teree, referring to the right of way topic listed on last week’s agenda, asked about Merrill Mundell’s proposal titled “gravel pit.” Whose gravel pit was that referring to, he asked, and why and when was the project cancelled? Green said we were surveying the line between the town’s garage property and the Boyko property to learn if there was encroachment onto the town property. When the survey was finished and we discovered there was no encroachment the project was dropped. Mundell may have referred to the town garage property as a gravel pit; we were processing gravel out of the town (2044 Branch Road) property at that point. Blais asked for clarification—was the boundary line in question the one from Branch Road up to the town garage property? Yes, answered Sumner. We were affirming the line between the town property and the Boyko property. Green explained that the simplest and least expensive way of establishing the line was to survey the boundaries of the (three-quarter acre) Boyko property, rather than surveying the entire (28.5 acre) Town Garage property. Teree said he was under the impression there should have been a quit-claim deed produced, as mentioned in Mundell’s proposal, to clarify fuzzy deed issues. When we determined there was no encroachment, that eliminated the need for a deed, responded Green.
Edee Edwards thanked the Selectboard for the virtual meeting option, and hopes we can continue to improve the technology. Edwards had two questions. First, tonight’s agenda lists “Executive session (if needed)”: Is there an executive session tonight? Edwards thinks that should not be included on every agenda, but only on agendas when there is an expectation of an executive session. She said that is VLCT’s recommendation for best practice. Edwards second question was about the status of cellular service; is there any movement to get better coverage? Sumner replied that we always include the possibility of an executive session on agendas, in case something comes up after the agenda is published. There is no executive session tonight. It is that way in most of the meetings I attend, he said. We’ve had times when we needed an executive session after a meeting has started, said Green. It is printed “if needed” so that option is available. Cell phone service is beyond our control, he said. The Broadband Committee might be dealing with that.
Chris Parkins thanked Blais for his efforts and mentioned he was hearing a click about every five seconds when people were talking. Cara Cheyette said she was not hearing the same sound. She suggested the Board continue to consider additional options for meetings; maybe by using the phone, rather than the Internet, with meetings at the Town Garage, to allow both in-person participation and remote access. Another option might be the present arrangement (with the Board in the conference room) but with the building’s windows open and people sitting six feet apart outside the building. Or perhaps, if there is no school, the School Board would allow the town to use the school’s auditorium, which has more space and strong internet. Blais, who is on the School Board, advised Education Agency rules say that once school is in session no non-staff individuals will be permitted in the school; only students and faculty will be allowed. Both Blais and Green said they would continue to consider various options, and ways to improve the situation.
Marketa Psenickova said she appreciates the remote option, and mentioned she, too, is hearing clicking sounds. Earl Holtz is on a landline and is hearing clicks and whistles. Janice Bliss advocated for continuing research of meeting options to find a solution which will allow everyone, including home-bound individuals, to participate. Edee Edwards reported clicking sounds, but no whistles, on a landline. Bob Teree is on a voice-over IP, using a Google internet connection, and he is hearing clicking. Blais speculated that there may be a tone in the line due to the meeting being recorded. He will call the conference line provider and ask that question. Kathy McLean, on a landline, is not hearing the clicking, but is having difficulty hearing some people speaking.
Selectboard’s Order to the Treasurer for Payment
The orders to the Treasurer were reviewed and signed.
Executive Session (if needed)
Sumner made a motion to adjourn the meeting at 8:16 p.m. Green seconded the motion, which passed 2-0.
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