(5/12/07)  The Select Board met at 6:30 p.m. on Thursday, May 10th, prior to Town Meeting.  Gerry Weiss, Alisa Brewer, Hwei-Ling Greeney and Rob Kusner were present, and Anne Awad was absent.  Town Manager Larry Shaffer was also present.

Public Comment Period

Terry Franklin spoke about the recent marijuana legalization rally.  He said the organizing group was either being harassed or was part of a bureaucratic mistake.  He said his complaint this year wasn't with the Police Department, though he said that undercover officers tried to entrap people at the rally, but said this time his complaint was with the Department of Public Works.  He said he received a bill for $400 for garbage removal.  He said that the group has been picking up its garbage on the morning after the rally every year for 14 years, and when they arrived on that Sunday morning to retrieve the garbage that had been bagged up and left by the stage the night before, it was already gone.  He said that if there were a change in policy about this, he hadn't been notified.  He said his bill was for the removal of 800 pounds of garbage, and said that didn't make sense because the garbage was only sandwich wrappers and soda cans, and there wasn't nearly that much of it, so he wondered if construction debris had been added in with the event garbage. 

Mr. Weiss said that the bill might be assumed to be a mistake, but Mr. Shaffer said that was not the case.  Mr. Shaffer said that a DPW crew had spent two hours cleaning up the Common, and that there had been substantial trash beyond that which was bagged.  He said his expectation of groups using the Common is that they leave it in as pristine a condition as they found it.

Mr. Franklin said the group has always done that, and Mr. Shaffer said they did not do so this year.  Mr. Franklin said they weren't done cleaning up at the time the DPW picked up the garbage.  Mr. Shaffer said he would be glad to have a conversation about the issue with Mr. Franklin, and Mr. Franklin wanted that to occur right then, but Mr. Weiss said it could not.  Mr. Franklin asked that it be put on a future agenda so that the conversation would be held in public, and Mr. Weiss said that could occur after Town Meeting.

Ms. Greeney said that she had been on the Earth Day organizing group for several years, and that that event had always taken place on the Common the day after the marijuana rally.  She said she didn't recall there ever having been an issue with the condition in which that group had left the Common. 

Article 16 – Amherst-Pelham Regional School District Agreement

School Superintendent Jere Hochman said there was information the Select Board needed to know, which had just been circulated in a late e-mail, that all the towns in the regional school district must approve the assessment method and must approve the budget.  He said that the approval by all towns of the budget was a change from the previously-required majority approval.  He said that change was made by the State in January and had not been included in any of the drafts about regional school districts, and that the new law took effect in February and that they had only just learned of it. He said that the result of the change is that all the towns must now approve the budget in order for it to take effect, and that Leverett, Pelham and Shutesbury have already done so and Amherst would have its opportunity in the next week or two, when Town Meeting considers that article.  He said his office is currently examining the different scenarios that could occur if one town doesn't approve the budget, or approves it at a different amount than that approved by the other towns, and that those scenarios would be distributed in advance of the Monday joint budget meeting.  He said the assessment method had not changed, and that approving it was the first step in establishing the FY08 regional school budget, and that approving the budget amount was a separate step.  He said he apologized for not having discovered the change sooner.

Elaine Brighty, Chair of the Regional School Committee, said that the assessment formula must be approved by all four towns every year.  Mr. Kusner asked if the assessment would revert to the statutory method of the State formula if Town Meeting did not pass Article 16, and said he was asking the question hypothetically and was not advocating for that to occur.  Ms. Brighty said that used to be the assumption, but that the school committee would have to wrangle with that result.  Ms. Brighty and Mr. Kusner went back and forth trying to clarify the relationship between the assessment method and budget, and whether approving the former meant approving the latter, and Ms, Brighty said it did not.

Ms. Greeney said she would like consideration of Article 16 to be postponed until there could be better coordination of the budget process among the four towns.  She said she thought that the Select Board and Town Meeting would also benefit from a report from the Regional School Committee about their budget recommendation, and said that they had not met since the override vote.  She also said that given the new information, it would be hard for Town Meeting members to determine whether Article 16 should be used as a tool to affect the budget, and said they might want to do so because of the significant cost difference to Amherst under the two assessment methods, which she said was $600,000, though people in the audience were suggesting that number was not correct.  She said that due to all those elements, she felt strongly that Article 16 should be postponed.

Ms. Brighty said the assessment method is separate from the budget.  She said the State's assessment formula put annual per-pupil costs at $7,500 for Amherst, $11,000 for Pelham, $9,000 for Leverett and $8,000 for Shutesbury.  She said the reason that formula isn't used is because those figures would not be accepted by the other towns, and that the equal per-pupil costs were fair and would be accepted by the other towns' Town Meetings. 

Mr. Kusner suggested that an effective way to illustrate the negative impact of the State formula to Town Meeting might be to show the huge cost increase it would put on individual Pelham households.  He said that concern over high per-household increases was among the reasons the override vote failed.  Ms. Brighty said that another way might be to use equivalent Amherst dollars to express the Pelham's overall increase, and she said that would be about $5 million.

Mr. Hochman addressed Mr. Kusner's earlier question about what happens if the Regional Agreement's assessment formula is not approved by all four towns:  he said the assessment would revert to the State's formula.  He said that with different budget totals, the costs to each town that Ms. Brighty had cited would be different but the percentages would be the same, as would the big discrepancies in what each town paid per pupil. Ms. Brighty said she had meant that there were intermediate options before it got to the State formula, but Mr. Hochman said the bottom line is that it reverts to that.  Mr. Hochman said that Pelham had considered putting a $21,000 override question on their ballot to balance their town budget, but had decided not to, and he said that showed the unlikelihood of their agreeing to the $400,000 override that the State assessment formula would necessitate, which he said would bankrupt Pelham.  He said he liked Mr. Kusner's per-household cost increase illustration.

Ms. Greeney said she understood the impact on Pelham, but said that the Select Board represents Amherst and that she didn't want to “overplay the card” about how much impact rejecting the assessment formula would have on other towns.  She repeated her point that rejecting Article 16 was an available tool, and said that Amherst was being strong-armed into accepting the 3% budget. 

Mr. Weiss said that was no longer the case and that the budget amount was up in the air.  He said that the Regional Agreement Task Force had been appointed to create this agreement among the towns, and said that many had worked hard to do so and that it seemed late to expect a new agreement, and that he couldn't see doing that.

Ms. Greeney said she objected to that statement and said that the Towns have to approve the agreement every year, and that this is a valid part of that approval discussion, and doesn't diminish the work that went into creating the agreement.

Mr. Weiss said he didn't see a point in telling the towns to go back and work something out together, when they had already done that and come up with this agreement.  He stressed that the budget was not being discussed tonight.

Mr. Kusner said that Ms. Greeney might be saying that Town Meeting has a role in advising on this issue, and that its only opportunity to do so is by not consenting to the agreement.  Ms. Greeney agreed and thanked Mr. Kusner for expressing the sentiment in the terms of advise and consent.

Ms. Brewer said that the issue isn't just about the effect a change would have on the people in each town, but rather that this agreement was created in good faith.  She said that those who weren't part of the task force should not second-guess it, and she said it was “completely inappropriate” to say that you respect the committee's work but want to re-do the agreement on the floor of Town Meeting.    

Mr. Shaffer said that if Ms. Greeney's concerns are that Amherst is stuck with the 3% budget for the Regional Schools because three towns had already approved that, he said that was no longer the case and that the budget was now completely up in the air due to the new circumstances.

Mr. Kusner asked what the effect would be if Amherst Town Meeting approves something other than a 3% regional budget.  Mr. Hochman said there was a procedure for dealing with that, and reiterated that rejecting Article 16 was not the way to influence the budget.

Andy Churchill, Chair of the Amherst School Committee, presented a hand-drawn graphic of two pies.  He said that the assessment question deals only with how the pie is sliced, while the budget question deals with how big that pie will be.  He said the task force had determined that the costs for every student should be the same regardless of the Town the student lived in, making the slices equal per student and proportional per town.  He said the State formula would make those slices very different sizes.  He said that how big the pie would be – 1% or 3% or some other number – would be a separate discussion.

Vince O'Connor said he thought Mr. Churchill's description was “quite brilliant,” and that he thought it would help Town Meeting to understand the situation and make passage of Article 16 successful.  Mr. Kusner said the key would be persuading Town Meeting that it can determine the size of the pie.

Ms. Brewer moved to recommend Article 16.  The vote to approve the recommendation was 3 in favor, 1 opposed and one absent.  Ms. Greeney voted in opposition and Ms. Awad was absent.

Article 10 – Zoning Bylaw – Flood Prone Conservancy

Mr. Weiss said that the Select Board had been awaiting the opinion of Town Counsel as to whether he agreed that the existing bylaw made the Town vulnerable to litigation, and whether the proposed article was a good solution to that problem.  Mr. Weiss said that the answer to both questions was yes, and he read the statement from Town Counsel to that effect.

With that information, the Select Board then voted to support Article 10, 4 in favor, one absent.

Article 32 – Abolish the Amherst Redevelopment Authority

Mr. Weiss said the Board had been awaiting the opinion of Town Counsel on this article as well, and now had received it, but no one had the hard copy.  Mr. Shaffer said he could paraphrase it, but Mr. O'Connor did so instead.

Mr. O'Connor said that Town Counsel said that Mass. General Law sets forth a process by which redevelopment authorities can be dissolved, but Mr. O'Connor said that doesn't forbid the Select Board from requesting a special act.  He said the article allows the discussion to go forward, and that he doesn't think Town Meeting will vote to abolish the ARA.  He said the discussion would help explain what the ARA does, and might attract potential candidates to run for seats next year, which he said would be better than electing write-ins, which he said was bad due to how much authority the ARA has. 

Mr. Shaffer said he appreciated Mr. O'Connor bringing this issue forward, and that the ARA has not met but must.  Mr. Shaffer said they would meet Monday at 7:00 p.m.  He said he had corresponded with Peggy Roberts about the ARA's history.  He said it would be good to revitalize the ARA, and that he would be opposed to its dissolution without pursuing the conversation further with the ARA itself, and said he wouldn't want to lose its potential utility and future productivity.

Mr. Kusner asked what Mr. O'Connor's motion would be, and Mr. O'Connor said he would move in terms of the article and let public discussion happen and hear people's concerns. 

Ms. Brewer moved that the article be referred back to the ARA.  Mr. Kusner and Ms. Brewer had some back and forth about his procedural questions and concerns about such a motion. 

Ms. Brewer said she agreed with Mr. Shaffer's position, and that it wasn't certain if the ARA's authority was limited to the garage area, and that there is no requirement for the ARA to report to the Select Board or Town Meeting, and said she was uncomfortable having a discussion about the group's fate at Town Meeting, when the ARA needed to meet on its own about this.

Mr. Kusner said he was going to move that the Select Board not take a position, and then members could seek to be recognized and give their opinions as individuals if they so wished.  Ms. Brewer said that there were not individuals on the Select Board, and that the perception is that when they speak, they are doing so as Select Board members.  

Mr. O'Connor reiterated that he didn't think it would be abolished but did think the conversation should occur, and that he didn't think electing members by write-in was a good outcome.

Ms. Greeney said that the ARA has to abolish itself, and said she thought it was appropriate to refer the article back to that committee. 

Ms. Brewer said it was common to have write-in elections of Town Meeting members.  She said that the majority of Town Meeting members don't understand what the ARA is or what they would be voting for, and said that would preclude a useful public discussion on the matter.

Larry Kelley said he was a duly elected member of the ARA, and that he won his seat by garnering more write-in votes than Mr. O'Connor had, and that he had formerly been the Governor's appointee.  He said he found it odd that Mr. O'Connor was complaining about ARA write-ins when Mr. O'Connor himself had just run a write-in campaign for the seat.  Mr. O'Connor denied that he had run a write-in campaign.  Mr. Kelley said he had read Mr. Brackett's opinion, and that he (Mr. Kelley) accepted the proposal to refer the article back to the ARA.

Mr. Weiss suggested postponing the article until later in Town Meeting so that there could be a report from the ARA. 

Mr. Kusner said that the point of his motion was to encourage discussion, and talked about his procedural concerns for doing it the way Ms. Brewer had proposed.

The vote on the motion to refer the article back to the ARA was 2 in favor (Brewer and Greeney), 1 opposed (Kusner, who called it a “protest vote,) and 1 abstention (Weiss), with one absent. 

GLBT Rainbow Flag

Mr. Weiss read a proposal to fly the Gay, Lesbian, Bisexual and Transgender community's rainbow flag on the UN flag pole in honor of the May 17th anniversary of the legalization of same-sex marriage decision.  He said it would fly for a week and that DPW Superintendent Guilford Mooring had agreed to put it up and take it down.  Mr. Weiss said there would also be a potluck celebration of the anniversary from 5:30 to 7:30 in the High School cafeteria. 

The vote to approve flying the GLBT rainbow flag was unanimous.

Article 39 – Commemorative Flags

Mr. Kelley said the movie “The Queen” demonstrated the power of the symbolism of flying the national flag at half-staff, which the Queen had failed to do after Princess Diana's death, and he said the importance of the 9/11 tragedy was evident in the Queen playing the Star Spangled Banner at the changing of the palace guard ceremony in commemoration.  He said the town wouldn't want the bad publicity that could result from not flying its commemorative flags at half staff on that day.

Mr. Weiss said his position on this issue was unchanged, and if there is support at Town Meeting for flying the flags, then that's what the Town will do and he'll be happy to support that.

Ms. Greeney moved that the Select Board take no position on the article, and Mr. Weiss seconded that. 

Mr. Kusner brought up the issue of flag protocol and how the President has to call for the half-staff display.  Mr. Kelley said the President has done so, and Mr. Kusner said that the President will change at the next election, and suggested that removing that language might help Town Meeting to accept the article.  Mr. Kelley said he would happy to do that if it is necessary for passage.

The vote for the Select Board to take no position was unanimous.

Article 40 – Open Meeting Law Violations

Mr. Kelley talked about various legal precedents for shoring up laws by attaching monetary penalties to their violation.  He talked about the recent Flood Plain Conservancy litigation and the determinations regarding people being sued related to actions taken in the course of carrying out their duties on behalf of the Town.  He said his article would put teeth into the Open Meeting Law. 

Mr. Kusner said that Mr. Kelley had offered a broad legal argument, and that he (Mr. Kusner) was not persuaded by it.  He said he would like Town Counsel's opinion.

Ms. Brewer said she would like more information about the adjudication process and how the penalties would be enforced.  Mr. Kelley said the District Attorney would make the decision.

The Select Board took no action on the article, choosing to wait for Town Counsel's opinion.

Special Liquor Licenses

The Select Board approved two special liquor licenses.

Article Assignments

The Select Board assigned members to speak to the different articles at Town Meeting.  There was a brief exchange about Select Board minority reports versus members presenting their viewpoints as individuals at Town Meeting, and mention of standards of acceptable behavior for members.

The meeting adjourned hastily, because Town Meeting was to begin at 7:30.

The next Select Board meeting will be at 5:30 p.m. on Monday, May 14th in the Town Room at Town Hall, to be followed at 7:00 p.m. by a joint meeting of the Select Board, the School Committee, the Library Trustees and the Finance Committee.

-- Stephanie O'Keeffe