NewburyportNews.com, Newburyport, MA

October 30, 2013

Public denied access to legal opinion on fire engineers

West Newbury selectmen divided on decision

BY JENNIFER SOLIS
CORRESPONDENT

---- — WEST NEWBURY— A majority of the Board of Selectmen has decided to keep a legal opinion related to the Board of Fire Engineers a secret from the public for the time being.

Chairman Bert Knowles Jr. declined a request from the press on Monday for access to a memo issued by town counsel Michael McCarron regarding whether the way fire engineers choose a fire chief is in conflict with state ethics laws.

All three selectmen acknowledged receipt of the memo and the board spent nearly 15 minutes discussing it. But although Selectman Glenn Kemper was willing to turn a copy over to the press immediately, his two colleagues chose instead to keep it private. Yesterday, The Daily News made a formal public documents request for the memo.

Knowles said he was waiting for answers to some follow-up questions he posed after the initial opinion was delivered. After the meeting Anderson stressed that he would vote to make the document public once those answers were in. But no one — not even McCarron — could say whether that would happen prior to next Monday’s Special Town Meeting.

According to comments made by both Kemper and McCarron on Monday, the legal opinion found there was no conflict of interest in either the way fire engineers were appointed or the way they chose a fire chief. Selectmen appoint the members of the fire board each April and once selected, the engineers choose a chief from among themselves.

At a previous meeting Anderson worried that having engineers choose from among themselves to fill a compensated position was a conflict of interest. He proposed asking Town Meeting voters to adopt a section of state statute, known as The Strong Chief’s Law, that would dissolve the fire board and install a fire chief as the department’s sole leader. Knowles agreed, but Kemper was strongly opposed.

Last week fire engineers sent a letter to selectmen seeking no action on the warrant article this fall, saying they were currently developing a long-term strategic plan for the department.

Fire engineer Bob Janes told selectmen his board was “working very hard” to resolve some issues that have long-plagued the fire board, adding, “We’d like the opportunity to see what is best for the town of West Newbury and the fire engineers.”

Knowles remained skeptical the fire board will recommend anything that results in its own elimination. Anderson believes the department needs a professional manager at the helm. He said that despite repeated requests from selectmen earlier this year for input on this issue, the fire engineers’ response was lackluster until they realized Town Meeting voters would be asked to weigh in.

Both Knowles and Anderson acknowledged they disagreed with McCarron’s findings. “I’m not going to argue with town counsel, but I don’t agree with his opinion,” Anderson said.

Knowles noted that two state statutes on the issue are “not in sync.” One states that the fire board has a statutory duty to choose “a chief engineer” from amongst its members. But in more recent findings the state Ethics Commission has repeatedly determined that boards such as the fire engineers are no longer authorized to appoint their own members to compensated positions. Based on the references cited within McCarron’s opinion, Knowles concluded that “Mike took a narrower look than he should have” in analyzing the question.

Kemper asked McCarron to release the memo, but McCarron said he’d first need authorization from selectmen.

“It’s my opinion that my communication with you is an attorney-client communication and as such the document is not public record,” he said.

Kemper then turned to his colleagues and asked them “in the interest of transparency, do you have a problem with (the press) reporting the whole story?” He felt it was important for voters to hear the town counsel’s opinion prior to Town Meeting.

But Knowles countered that putting out what he sees as “incomplete information” would actually mislead the public. “Let’s try to resolve it first,” he said.

Kemper then objected to what he feels is a tendency by Knowles to label a document as being “in draft form” as a way to skirt public document laws, an apparent reference to a five-month delay in the release of a financial audit back in 2011. At the time, Knowles claimed the document was still in draft form and raised questions about some of the methodologies used by auditors Melanson Heath in arriving at the results it did. The audit was eventually released in an “as is” form without any new input from the employees, Finance Committee or selectmen.

Kemper argued on Monday that if Knowles really feels there is more research needed, then why not take no action next week and revisit the warrant article at the annual meeting next spring.

“This is first-class manipulation,” he said. To which Knowles responded, “That could be said of your comments, too.”