Open Meeting Law remains a contentious issue for Thetford Selectboard

Editor's Note: the author of this article is related to Selectboard member Nick Clark. Sidenote is seeking guest writers who can bring alternative perspectives to important Town issues, particularly in regard to the Selectboard.

It’s been a tumultuous first month for the new Chair of the Thetford Selectboard, Sharon Harkay, who devoted a good portion of the April 5, 2021, Selectboard Meeting to curing several alleged Open Meeting Law violations.

Harkay took care to emphasize that the violations were only allegations and that they would not be considered “a true violation until the court deems it to be so. Anybody can allege that we have violated Open Meeting Law, but that’s all it is — a possibility.”

Nevertheless, allegations have been brought forward by one of their own — Selectboard Member (and former Chair) Nick Clark — that Harkay and several other board members have repeatedly violated the law since being elected in March 2020.

In a post to the local listserv on April 5, Clark took it upon himself to share one of the violations with the public after noticing that there were no reference documents in the meeting packet for that evening’s meeting. He shared only one of the five unresolved violations, one he thought the Selectboard “should be most eager to cure.”

In it, Clark reveals conversations that took place over email between board members outside of a publicly warned meeting. Via email, they deliberated over who they wanted to be Chair for the upcoming year, along with “a strategy of public deception” once they'd made their decision. Selectboard member Mary Bryant wrote, “Steve [Tofel] shared with me his idea for N, to say he is stepping aside so he can focus on work. I would be more than happy to support that story/information going out to the public should people ask and be curious.”

Towards the end of the document, Clark wrote, "This violation is not an isolated event. As Chair, I spent a full year trying to respond to repeated violations, and in the short time since a new Chair was elected, I've counted at least seven new violations, as well as the independent release of confidential information by three different board members."

At the April 5 Selectboard meeting, Harkay verbally summarized four of the five alleged Open Meeting Law violations. Along with the topic of selecting a new Chair, they included discussion of goals and priorities in advance of the annual Selectboard retreat scheduled for next Monday, April 12th, as well as Harkay’s response to the alleged violations — in itself alleged to be a violation.

Harkay did not read the alleged violations to the public nor were they available to read, but she promised that they would be available in the next meeting's packet. She took the time to recount one of her emails in depth, making it clear that she felt every member of the Selectboard was equally guilty of violating Open Meeting Law.

“Nick has been filing these, but he by no means is innocent of breaking Open Meeting Law,” she said. “In the first few months [that] the three of us were on the board, Nick would drive around to each of our houses in succession to discuss Town business, and in doing so would tell us what the other people were thinking and what he was thinking. So, I know I personally got the idea that that kind of conversation was okay.”

Not so, according to Clark who writes, “I’ve never once been to Mary’s house. I have been to Steve’s house once ... before he was even considering a run for Selectboard.” Clark writes he has been to Shen's house "on numerous occasions, but most of them have been social visits."

As for Harkay, Clark recalls going to her house twice: once to notify her of a personnel decision at the direction of the Town Manager, and a second time to discuss paving [the parking lot in front of] Town Hall after she had expressed confusion about it during a Selectboard meeting. On his second visit, Clark adds, "What we ended up talking about was drainage issues you [Harkay] were having with water coming down Tucker Hill." The matter, he says, was never Selectboard business.

Clark has asked Harkay to publicly recant the “false statements" she made about him driving around to Selectboard members' houses to discuss board business.

Harkay ended the discussion on Monday night with advice for residents, which she said was given to her by Town Attorney Brian Monaghan:

“He [Brian Monaghan] said that anybody who would like to allege that there’s been a violation should in fact just email those claims to Bryan, our Town Manager, and to myself as Selectboard Chair, because every time you email the entire board about this, that person emailing the alleged violation is breaking Open Meeting Law him or herself.”

This warning, it turns out, is factually untrue. Open Meeting Law is designed to protect members of the public, and the only people who can violate it are members of a public body. In addition, the Open Meeting Law statute mandates that written notice of an alleged violation must be sent to the entire Selectboard, thus ensuring that it becomes a part of public record, gets put on the following meeting’s agenda, and is then included in the meeting packet for the public to read.

The Selectboard held a special meeting on Wednesday, April 7, to discuss the alleged Open Meeting Law violations with the public as well as with the Town Attorney. Monaghan came ready with a presentation to explain the basics of the law before taking questions and opening the discussion up to the public.

This author asked Monaghan whether or not he advised Harkay to discourage residents from writing to the entire Selectboard lest they risk breaking the law themselves, but he declined to comment, citing attorney-client privileges. He did, however, concede that the Open Meeting Law protects the public and constricts board members, adding, "If you have an Open Meeting Law violation allegation, I don't think there's anything wrong with sending it to everybody on the board."

Note: All quotations of verbal statements have been taken from audio recordings of the meetings indicated.