OFFICE OF THE SELECTBOARD
Town of Halifax, Vermont
SELECTBOARD REGULAR MEETING MINUTES
July 21, 2020
Call to Order
The meeting was called to order at 7:03 p.m. Selectboard members Lewis Sumner, Mitchell Green, and Bradley Rafus, and Town Moderator Paul Blais were present. Public access was provided through a conference call service, and the following attendees were documented: Kathy McLean, Peggy Rafus, Rhonda Ashcraft, Town Attorney Bob Fisher, Marketa Psenickova, Patrick Eck, Stephan Chait, Peter Silverberg, Douglas Parkhurst, Marilou Parkhurst, Linda Lyon, Everett Wilson, David Jones, Earl Holtz, Tina Blais, Sarah Barnett, Cara Cheyette, Edee Edwards, Tristan Roberts, Bob Teree, Ben Barnett, Keith Stone, Kaitlin Stone, Marilyn Allen, Scott Ashcraft, Chris Parkins, and Sue Kelly. Robbin Gabriel was also present.
Changes and/or Additions to Agenda
Immediately upon opening, Brad Rafus announced that he was withdrawing his informal resignation from the Selectboard. He stated that he was under duress at the time and made a hasty decision.
Rafus requested a discussion of upcoming Highway Department work.
An unidentified caller asked to comment on Rafus’ announcement. The Board advised comments would be heard during the Visitors portion of the meeting.
Stephan Chait had information about the availability of sole proprietor grants; Sumner said that topic would be added under New Business.
As Paul Blais attempted to give instruction on telephonic meeting protocol Cara Cheyette raised a point of order which, under Roberts Rules, takes precedence over other business. Cheyette said if it was not lawful for Rafus to withdraw his resignation well beyond the 10-day time period in which a vacancy should have been noticed, that should be discussed before Rafus acted as a Selectboard member during the present meeting. In response to Cheyette’s concerns, Town Attorney Bob Fisher advised that in Vermont a vacancy does not exist until a resignation is completed. Past practice in Halifax, as evidenced by records kept by the Town Clerk, has been that a vacancy exists only when a written resignation has been submitted and accepted by the Board. Vermont statute does not require written resignations, and Fisher did not find Vermont case law testing the issue at the Supreme Court level. His research revealed that statutes in a number of other states do specify a written resignation requirement. Fisher offered some further detail on other states’ case law.
Following Fisher’s statements, Moderator Blais confirmed with the Selectboard that the point of order had been satisfied, and the Board would continue with agenda items.
Procedures for Telephonic Meetings
Blais said the meeting format would follow Roberts Rules, and outlined the procedure as it would apply to telephonic meetings. (Note: The audio recording of this meeting is available to the public. Instructions for access are provided below these meeting minutes.)
Mitch Green advised the Board has received a citizens’ petition requesting a special election to fill a Selectboard vacancy. Brad Rafus has rescinded his resignation, however, and as the resignation was not in writing, and the Selectboard has not accepted it, there is no vacancy. No action will be taken on the petition. Paul Blais read the petition for the record, as follows: “We, the undersigned legal voters of Halifax, Vermont, hereby petition the Halifax Selectboard to warn a special Town Meeting so that the vacancy created by Brad Rafus’ resignation is filled by the voters (by way of an Australian ballot election, for the balance of his term) rather than by the remaining Selectboard members (by way of an appointment, until the next annual Town Meeting). The right of residents to fill this kind of vacancy by way of election is conferred by 24 V.S.A. §962, and the obligation of the Selectboard to timely warn a special Town Meeting when presented with a lawful petition is imposed by 17 V.S.A. §2643.”
Linda Lyon asked the Selectboard to please provide the authority for the written resignation requirement. There is precedent, but where is it codified? Attorney Fisher advised there is no such statutory requirement. When there is no statute, you look for common law, or precedent. Fisher said he found no such case law in Vermont Supreme Court cases, but an examination of other states’ case law showed a precedent that, to be valid, resignations must be accepted by the Board. Lyon said there is a requirement that a vacancy be posted within ten days. That is correct, responded Fisher, but a vacancy doesn’t exist.
Cara Cheyette said in her opinion this was an outrageous reading of the rules of the statute, and that the notion past practice is somehow the law in Halifax simply isn’t. Cheyette felt Rafus’ verbal resignation was clear, and a vacancy notice should have been posted within ten days. I strongly object to the way the Selectboard and town counsel is dealing with this issue, she stated.
Tristan Roberts said he had seen no mention in Board meeting minutes of a decision to hire Attorney Fisher to advise on the resignation question. He asked if there had been discussion among Board members, outside of an open meeting, about requesting Fisher to research resignations. Green and Sumner said no; when the citizen’s petition was received Gabriel asked Fisher to advise on the issue.
Sue Kelly did not agree with Bob Fisher’s assessment of the situation; she felt his decision to look at cases outside Vermont was cherry-picking. That’s not proof that a verbal resignation in the Town of Halifax would not have held weight, she said. The fact that law in other states specifies written resignations, while Vermont’s does not, is significant. Kelly held that Rafus’ verbal resignation was valid, and the Selectboard’s decision not to regard it as such was triggered by the citizen’s petitioned request to vote on a replacement to fill the vacancy.
Lewis Sumner advised that he had talked with the Town Clerk, and Rafus was elected and sworn in, and there has to be a record of resignation in the town records. This was never done, said Sumner, so the Board never accepted the resignation.
Cara Cheyette noted that the Selectboard held a special meeting last Tuesday (July 14th) convened to hold an executive session to discuss personnel. Did the Board and Brad discuss this (resignation) under the guise of it being a personnel matter?, asked Cheyette. No, responded Sumner.
Sumner made a motion to not accept the citizens’ petition to hold a special town meeting to fill a Selectboard vacancy, as there is no opening. Green seconded the motion, which passed, 2-0-1, with Rafus abstaining.
Chris Parkins said this was the first he’d heard of Rafus’ withdrawing his resignation, and he was surprised because he (Parkins) had heard Rafus’ verbal resignation and thought Rafus didn’t want to do it anymore. Parkins also thought that if Rafus was on resignation status he didn’t have the authority to be at the July 14th executive session. Green explained that Rafus was present in the executive session as Road Commissioner and Supervisor, while personnel issues were being discussed. Gabriel noted that Parkins joined tonight’s meeting several minutes after it opened, and therefore had missed Rafus’ opening statement withdrawing his resignation.
Sumner advised two applicants had expressed interest in the open Emergency Management Director position—Paul Blais and Kathy McLean. Green suggested the Board did not need to make an appointment immediately, as a vacancy means the Selectboard Chair automatically serves as EMD. Sumner said in his opinion the Board should make an appointment now. I worked with Paul Blais years ago, said Kathy McLean. I think he would be a fine person as EMD, and I would totally endorse him. Sumner made a motion to appoint Paul Blais as Emergency Management Director for the remainder of the year, until after 2021 Town Meeting. Green seconded the motion, which passed, 3-0. In discussion before the vote, Cara Cheyette said there was never a job description, and having a description and what kind of money and hardware is involved would be really helpful. She also wanted assurance that the laptop purchased for EMD use and any other equipment would move with the position. We do have a job description for the Emergency Management Director position, said Sumner. It is a five-page description available in the Town Office. Blais asked if the job description is the same as that provided by Vermont Emergency Management. A lot of it is, replied Sumner; ours is possibly a little more detailed. Green added that any EMD equipment belongs to the Town and goes with the job. The salary is $3,500 a year, said Rafus, plus a budget for emergency equipment. That amount varies, but the last few years it has been $10,000. Green said there had been some confusion earlier regarding compensation for the EMD position. If there is a FEMA event, FEMA pays the Emergency Management Director’s administrative costs for recording, documenting, and submitting required records. Administrative costs are calculated as 5% of the total reimbursement amount for the event, added Rafus.
Discuss Temporary Meeting Schedule Change
Green said he would like to consider holding Selectboard meetings once a month, as teleconference meetings are difficult. Sumner thought the Board should continue the regularly scheduled first meeting of the month (first Tuesday every month), because there is usually more business at that meeting. If there is anything that requires attention in the interim, added Green, we could schedule a special meeting as needed. Green made a motion to change the Selectboard meeting schedule to the first Tuesday of every month, with the option of special meetings as needed. Rafus seconded the motion, which passed, 3-0. Sumner told Blais that if a special meeting were scheduled the Board would give 48 hours notice, and the normal procedure of posting notice online, on bulletin boards, and emailing the distribution list would be followed.
Discuss Email Complaint on Truck Usage
Rafus advised that for this discussion he would recuse himself as a Selectboard member and participate as Road Commissioner. Sumner said the Board had received an email which read, in part, “How much or how often is Brad Rafus using Halifax Town vehicles as his own transportation? For example, how can I find out where he is coming from on I-91 at 1:30 on Wednesday, 7/16/20? I’ve seen him using the big red truck all over the place outside of Halifax and want to know is he using Town expenses for gas and mileage and wear and tear on this vehicle for his own use?” Rafus was not working last week, said Sumner; probably one of the other town crew was drawing gravel. Rafus said a town employee traveled to Townline Equipment in Plainfield, New Hampshire, to get a part for the tractor. The employee documented the trip on his time sheet. I haven’t worked since June 25th, added Rafus. Green and Rafus both said that highway employees are often on the road outside of Halifax to collect parts and supplies, deliver trucks for repair, etc.
Keith Stone confirmed that he had made the July 16th trip to Townline Equipment to purchase a $50 used tractor drive shaft the vendor had available. A new shaft cost $355, so the trip was a savings for the Town, and the tractor was back in operation after a few hours. Tristan Roberts asked to whom the email was attributed; he objected to anonymous writers making statements about town personnel. Sumner said the email was signed by Tim Masters. Stone commented that there have been problems with the individual in the past, that shovels have been thrown at town crew, rocks and cans put in the road, and a sign posted forbidding the town to cut a tree that was actually on another owner’s property. Edee Edwards asked why it was necessary to read the email in public meeting; she said in her opinion it felt retaliatory and should have been dealt with offline. We have tried that before, replied Sumner, and he just doesn’t listen. Cara Cheyette commented she thought it fair for people to ask questions about town employees. She appreciated learning the allegation was inaccurate, but felt private citizens should not be subjects of discussion when they were not present.
Discuss 637 Hubbard Hill Road Right of Way
Rafus recused himself for this discussion. Sumner said the town no longer uses this right of way so as far as he is concerned we could throw up the town’s end of the right of way. Rafus said there was a misconception that it was a public right of way, when in fact it was only for the town’s and the landowners’ (Rafus) use. He added that the ROW was established in 1971 to allow access to a then landlocked lot, and it hasn’t been used since the 1980s. Bob Fisher verified that the property was sold to the town in 1971 by LaRock, and the deed includes a 20-foot right of way from Hubbard Hill. It is not a town road, said Fisher, it is a right of way to get to the town-owned property. If the Board wishes to discontinue that it should follow the process under 24 V.S.A. §1061 of giving notice of the conveyance and then waiting 30 days to allow for objections. Green said he would like to have time to consider the question, as once a right of way is relinquished it is hard to get it back. Bob Teree asked why the town would want to give up the right of way. He also asked if the Rafus garage was illegally blocking that right of way. No, replied Rafus, my garage is a minimum of eighty feet from the edge of the right of way. The right of way is clear, but it is full of trees because it has not been maintained in 35 years. Edee Edwards, who lives on Hubbard Hill, was viewing Google maps and seeing an unnamed path on her screen. She would prefer that there not be any town access from the Hubbard Hill direction, and she encouraged the town to follow through with map updates if changes are made. Keith Stone offered the opinion that should the town ever be required to remove material from the closed landfill, the ROW access under discussion would be the easiest travel path. Stone also said that the ROW crosses two parcels; would the town be relinquishing to both landowners? Green said if it happened the town would probably give up their part of the ROW, but there would be a hearing process. Green said he would like to add this topic to the next meeting agenda for further discussion. Rafus said he wasn’t asking the town to give up the ROW, he just wanted clarification of the fact that the passage is not passable, and not a public highway. Bob Fisher confirmed the right of way is not laid out as a public ROW, and if the town were to relinquish their rights the other landowners would not lose their access privilege. Bob Teree was of the opinion that the town giving up a right of way to a Selectboard member could be seen as a significant conflict of interest. He said the action would be of financial benefit to the Rafus property.
Rafus said the Board needs to decide whether to go forward with a paving project this fall. No action was taken in June, as the Board chose to wait to hear if funding would be available. Rafus didn’t think there was sufficient time to do the Green River Road project, but Brook Road could be resurfaced without a lot of time-consuming initial preparation. Brook Road would also be a less expensive project. Green said he wanted to include the status of the equipment fund in a decision about paving, and the Board agreed to add the topic to the next meeting agenda. Rafus will compile figures and present then at the next meeting. We also need to issue requests for gravel bids, Rafus added. Subsequent conversation with Gabriel revealed a misunderstanding; bid requests had been sent out for sand, but not for gravel. We can put out gravel requests for the following meeting (first Tuesday in September), said Rafus.
Stephan Chait advised that Windham Regional Commission is sharing information from Vermont Community Development regarding the availability of grants to assist sole proprietors. It’s a short window of application, said Chait; July 27 through July 31. A lottery will be held on August 14th to determine winning applicants. The grants will range from $5,000 to $10,000 and will be given to qualified sole proprietors. Chait is working to publicize this opportunity; and notices have been posted on the town website and the local bulletin boards. Information is also available on the Windham Regional Commission website.
Hearing of Visitors
Tristan Roberts, representing the Broadband Committee, shared that there may be some funding through the CARES Act which could provide opportunity to improve service at the Town Office or the Town Garage. This is recent news, and there are questions to be answered, said Roberts. As more details are available, Roberts will communicate with Paul Blais, who handled the interactions with Consolidated Communications which resulted in the present Town Office service. Roberts also advised the Deerfield Valley CUD continues to expand; there are now 21 towns involved. The CUD is currently investigating funding sources.
Edee Edwards thanked the Selectboard for arranging tonight’s meeting as a teleconference, and having a moderator. We’re in the midst of a pandemic, and public safety is a number one priority, she said.
Bob Teree asked if the Board had any plans to conduct an audit with a certified public accountant firm in the near future. Sumner and Green said that could be discussed during fiscal year 2022 budget preparation meetings in and December 2020 and January 2021. The current operating budget, which was voted on in March of this year, does not include funding for an outside audit.
Paul Blais said he would like to solicit feedback, from the participants’ perspective, on tonight’s meeting procedure. Sumner and Green both said the process had worked better than former attempts. Tristan Roberts agreed with Edee Edwards’ assessment, and thanked the Board for setting the meeting up with remote access. Kathy McLean agreed with Roberts and Edwards, and asked if an independent audit discussion would be added to the next meeting agenda. Sumner said the Board would discuss it when working on the budget for the March 2021 town warning. Chris Parkins also said thank you to Blais for a good job moderating. He asked for the evening’s attendance numbers. Blais counted 24 participants. Parkins mentioned the audio was muffled on the Selectboard side, and Blais said maybe a better microphone could be provided next time.
Selectboard’s Order to the Treasurer for Payment
The orders to the Treasurer were reviewed and signed.
Green made a motion to enter executive session to discuss personnel matters, with Rafus recused as Selectman and acting as Road Commissioner, and including Gabriel. Sumner seconded the motion, which passed, 3-0. The Board entered executive session at 8:32 p.m., and exited at 8:42 p.m., with no decisions made.
Green made a motion to adjourn. Rafus seconded the motion, which passed, 3-0. The meeting adjourned at 8:42 p.m.
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