DATE: Thursday, January 2, 2020, 5 p.m. in the Town Office Building
PRESENT: Charles Piso, Matt Corron, Ann Kuendig, Marylou Scofield, Sarah Gallagher, Rebecca Steward, Kristina Tooker, Herb Kuendig, Marion Abrams & sons, Verna Borden, Peter Borden, Katie Savage, Dylan Kelley
Select Board Chair Charles Piso called the meeting to order at 5:07 p.m.
Approval of the Minutes from the December 26, 2019 meeting was tabled until the January 7, 2020 meeting (Charles/Ann).
1. Budget discussions. Charles reported that the Town Treasurer was unable to attend as her daughter was in the hospital. 2020 budget preparations are nearly complete, the Board is awaiting further requested information and 2019 actuals from some departments. A motion to level fund these departments until requested information has been provided was made and passed (Charles/Matt). Grant monies for the sand shed will go to the Highway Fund and Town Treasurer Trish will work with Tory Littlefield of Two Rivers Ottauquechee Regional Commission to set up bookkeeping for the grant. The Town Hall Committee had submitted its report and recommendation for several phases of work. Phase One includes the installation of steel beams, excavation and watersealing, and electrical work at an estimated cost of $40,000. These repairs would make the building operational. The Town Hall Reserve Fund as of 12/31/18 contained $10, 143, with no expenditures made in 2019. Motion to warn Article 12 to approve $40,000.00 for Phase One was made and passed (Charles/Ann).
2. Board concerns. Charles introduced Town Counsel, Marylou Scofield, who reminded those present to stay on task and limit comments to agenda items. Anyone wishing to speak must raise their hand and be recognized by the chair. Charles reported that a complaint had been filed and in-house discussions to resolve the issues had not been fruitful. The complaint will be discussed at the January 7 board meeting. Charles stated that tonight’s agenda had been properly posted in 3 places, though not on the website as usual. Charles also stated that he had done the minutes of the December 26 meeting as counsel had advised that the Town Clerk should not do the minutes as an involved party. Acknowledging his long-time friendship with Ann, and that he had recommended her for the Board, Charles nevertheless felt the situation was detrimental to the Town and left the Town vulnerable to liability issues, and made a motion for a Vote of No Confidence and Request for Resignation of Select Board member Ann Kuendig. “Specifically, Ann’s actions have resulted in a complaint made by the current Town Clerk alleging hostile work environment, and has warranted the constant involvement of Town Counsel, creating significant additional expense to the Town in an effort to avoid legal action against the Town. The statements of the complaint and discussion surrounding the conflicts Ann has created with town employees show a history of inappropriate behavior toward the current and past Town Clerks and Assistant Town Clerks. I make this motion after attempts to resolve the problems brought to my attention have failed. Ann Kuendig has refused to acknowledge that her demeanor and conduct have been detrimental to the atmosphere of mutual respect and civility to and among town employees and officers that is required for a Town to function effectively. Ann’s conduct has been unprofessional and at times has been in contradiction of the Town policies of confidentiality with regard to personnel issues and has resulted in a serious complaint being brought against the Town. For these reasons, I feel there is no other option for the Select Board other than to sanction Ann with a vote of no confidence and request her immediate resignation.”
Matt seconded the motion and it passed with 2 aye votes and one nay.
Ann began to read a statement, though Charles asked her to stop as it appeared to be a response to the complaint, which was not on the floor for discussion. Charles deferred to counsel, who said though it sounded like a response to the complaint she could not say without seeing the entire document. Charles agreed to let Ann read her statement, which follows.
January 2, 2020
Statement of Select Board member Ann Kuendig
I have a prepared statement which I want to read into the record and included verbatim in the minutes of this meeting.
I have been elected by the voters of Pittsfield to aid in the conduct of the people’s business and are accountable to them pursuant to Chapter 1, Article 6 of the Vermont Constitution.
As their representative, it is my duty and obligation to help townspeople exercise their rights granted to the public under state statutes. Those rights are clearly defined in chapter one section 315 of the statues which state “Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment.”
Every question, communication or criticism that the Town Clerk/Treasurer cites in her complaint has been sanctioned under the statutes, not only as my right to pose, but for every community member to ask. Any resident or taxpayer can come to Town Offices on Tuesdays when Select Board orders are approved to review, question and/or criticize those decisions.
I can understand why someone who has no experience in public office might feel intimidated by public scrutiny of their decisions. But what I find troubling is the Select Board Chair’s response to her complaints.
The Select Board spent several months developing a procedure to handle complaints alleging a violation of Conflict of Interest and Ethical Conduct Policy the Board enacted in July 2019. But when the Town Clerk’s complaint was submitted, the Chair failed to follow the procedure which called for conducting an informal review by the Board and determining if it warranted further investigation. Not only was the complainant (Town Clerk) allowed to sit in on the Executive Session during which this discussion took place, but the Chair offered a motion to grant her request in her complaint to relieve me of my Select Board responsibilities of approving weekly orders.
Shortly after this meeting, I submitted a written answer to the Select Board Chair which he acknowledged receiving but has not submitted as correspondence for action at any subsequent Select Board public meeting.
I would now like to submit that letter to be publicly recorded.
This complaint, the way it has been handled and action taken by the Board threatens the integrity of the checks and balances system proscribed by statute to ensure every tax dollar is spent appropriately. I have raised legitimate questions regarding expenditures and appropriations that were made outside duly warned public meetings of the Select Board denying the public their right to participate in the administration and government of Pittsfield.
The referenced letter follows:
Mr. Charles Piso October 17, 2019
Pittsfield Select Board Chair
40 Village Green
Pittsfield, VT 05762
I have gotten some legal advice from a well-respected municipal law attorney regarding the recent actions of the Pittsfield Select Board. The attorney has directed me to the state law citations which spell out the duties and responsibilities of Select Board members specifically delegated by the Legislature; the authority granted the Chair of the Board and excluding the public from Select Board deliberations. It’s my hope that a review of these laws will clear up the confusion and debate we are experiencing over how the Board and other town officials carry out their responsibilities.
Below are the citations and specific interpretations found in the VLCT handbook and Secretary of State Municipal Law basics.
24 V.S.A § 872. “The Select Board must authorize all town expenditures by signing orders for the treasurer to draw funds.”
“The law provides that the selectboard is responsible for “the general supervision of the affairs of the town and shall cause to be performed all duties required of towns and town school districts not committed by law to the care of any particular officer.” This means that if something needs to be done, or a decision must be made that is necessary for a municipality to function, and no statute grants a specific local official the authority to perform that function, the particular duty will fall to the selectboard. When a question arises as to whether a local official has authority to act in a certain area the official must identify the law that grants the authority to act; it is never enough to simply conclude that since there is no law prohibiting the contemplated action the action is permissible.”
Example: As part of the selectboard’s “general supervision of the affairs of the town” the selectboard has the authority to make decisions about town buildings (with the exception of the library). They get to decide things like who gets keys, who should be able to use the building, whether the roof needs to get fixed, and how much liability and casualty insurance should be purchased. This is true even if the office is used principally as the town clerk’s office. The law requires the clerk to maintain the public records of the town and to make them available for public inspection during reasonable hours. 24 V.S.A. Ch. 35 (Town Clerks). Because of these specific statutory requirements, the clerk has control over the town vault, even though the vault is in a town building that is controlled by the selectboard, and the clerk may decide who gets a key to the vault. The clerk also gets to decide what his or her office hours will be and she can adopt policies related to making the town records accessible to the public. “
1 V.S.A. § 312 (g). “Routine day-to-day administrative matters that do not require action by the public body may be conducted outside a duly warned meeting, provided that no money is appropriated, expended, or encumbered.”
Authority of the Chair
1 V.S.A. § 172. “Vermont law does not give the chair of a board particular authority except for that which is delegated to him or her by the rest of the board. This means that the chair has no special authority to control what is on the agenda, to spend money that is in the control of the board or to direct the employees that are overseen by the board. Generally, the chair is responsible only for running the board meeting and for keeping order during the meetings and for making sure that the decisions of the board are carried out by the staff.”
“Vermont Law gives authority to selectboards and not to individual selectboard members. An individual selectperson has no more authority to take action on behalf of a town than any other resident.”
Exemptions for Holding Executive Sessions
1 V.S.A. § 313. “The law permits boards to exclude the public from a portion of an open meeting to discuss certain topics specifically provided for in the statute authorizing executive sessions. That being said, no binding action may be taken in executive session (except those related to securing real estate options). All final votes must be taken in open session and recorded in the minutes of the meeting. A board may not go into executive session simply because it wishes to proceed privately. Rather, it may only exclude the public if it can point to a specific exemption in the law. The statutory permissible things a public body may consider in executive session are:
• After making a specific finding that premature general public knowledge would clearly place the public body or a person involved at a substantial disadvantage:
o labor relations agreements with employees;
o arbitration or mediation;
o grievances, other than tax grievances;
o pending or probable civil litigation or a prosecution, to which the public body is or may be a party;
o confidential attorney-client communications made for the purpose of providing professional legal services to the body;
• The negotiating or securing of real estate purchase or lease options;
• The appointment or employment or evaluation of a public officer or employee; provided that the public body shall make a final decision to hire or appoint a public officer or employee in an open meeting and shall explain the reasons for its final decision during the open meeting;
• A disciplinary or dismissal action against a public officer or employee; but nothing in this subsection shall be construed to impair the right of such officer or employee to a public hearing if formal charges are brought;
• A clear and imminent peril to the public safety;
• Discussion or considerations of records or documents that are not public documents under the access to public records act. However, when the board discusses or considers the excepted record or document it may not also discuss the general subject to which the record or document pertains;
• The academic records or suspension or discipline of students.
• Testimony from a person in a parole proceeding conducted by the parole board if public disclosure of the identity of the person could result in physical or other harm to the person;
• Certain information relating to a pharmaceutical rebate;
• Municipal or school security or emergency response measures, the disclosure of which could jeopardize public safety.
According to the Vermont Supreme Court, an action taken improperly in executive session will not be void so long as it is ratified in a later, properly noticed, open meeting at which the issue appears on the agenda. Valley Realty & Development v. Town of Hartford, 165 Vt. 463 (1996). Despite this recent case, if it looks like a board has used executive session to circumvent the public process intentionally, it is likely that the court will determine its actions to be void.
In order to go into executive session, the issue must be on the agenda and the board must vote to go into executive session to discuss the matter. A motion to go into executive session must indicate the nature of the business of the executive session, and this motion must be passed by an affirmative vote of a majority of the members present. In an executive session only the subject matter referenced in the motion to go into this session may be discussed.’
Since the day I took the oath of office, I have not overstepped the discretionary authority granted to Selectboards by the Legislature (and the cited laws above) to ensure most tax dollars are spent wisely, appropriately and transparently under full public scrutiny. As I have stated over and over, I am just doing the job I have been sworn to do when I question expenditures that are made outside the authority of the Selectboard.
The latest two examples--the purchase of monogramed shirts for Constables and laptop and accessories for the Town Clerk, should have come before the Select Board in a duly warned public meeting (as this legal advice affirmed.)
I also intend to continue doing my job of monitoring and scrutinizing orders on Tuesdays at Town Offices as the Chair has no authority under the law to re-organize the duties of the Board and prohibit a member from examining documents that even all members of the public are entitled to do.
Please accept this letter as a formal complaint that the last two Executive Sessions of the Pittsfield Select Board were held improperly as the nature of the business was not given at the last session and there does not appear to be a clear exemption for discussing an informal complaint letter for a public officer or a change in personnel behind closed doors. As the Vermont Supreme court has affirmed an action taken improperly will be considered void unless it is ratified in a later properly noticed, open meeting.
I am also submitting this letter as a public records request for a copy of the Town Clerks letter to you and Matt and the email from Erica Hurd that was sent to town offices last week.
It really is my sincere desire that we move on from the distractions that have plagued this Board since last May and focus on doing what’s best for residents and taxpayers. I know some people believe the board is dysfunctional, but I believe we have already made some important accomplishments and can achieve many more in the future.
Ann Dufresne Kuendig
Pittsfield Select Board member
Cc: Paul Guiliani,
1. Complaint. Charles noted that the complaint will be addressed at the January 7 Board meeting and next steps will be determined.
Adjournment: Motion to adjourn passed at 5:55 p.m. (Charles/Matt)
Board Secretary pro tem
Approved: January 7, 2020
s/Charles Piso, chair