ZBA’s Bartolini seeking reimbursement of Legal defense fees; BOS discuss/vote on Tues (Updated)

by beth on April 27, 2018

Post image for ZBA’s Bartolini seeking reimbursement of Legal defense fees; BOS discuss/vote on Tues (Updated)

Above: Leo Bartolini hired an attorney to defend his seat on the ZBA and respond to complaints filed with the Ethics Commission. His attorney is now asking selectmen to reimburse Bartolini for his legal fees as the “target” of “malicious” individuals acting in “bad faith”. (image cropped from SAM video)

In 2016, a group of residents sought to have Leo Bartolini removed from the Zoning Board of Appeals. Some also supported a filing with the state Ethics Commission accusing the official of wrongdoing. Now, the still-standing ZBA member is asking for the Town to reimburse him for over $12K in related legal fees.

The request will be discussed by the Board of Selectmen at their meeting this coming Tuesday night. According to the agenda issued today, the board will hear the request and potentially vote.

Bartolini’s attorney Warren S. Heller wrote to selectmen:

Mr. Bartolini, a dedicated public servant for many years, was clearly the target of a group of disgruntled, malicious and mean-spirited individuals with two separate agendas which were/are not necessarily exclusive of each other. Mr. Bartolini requests that the Board of Selectmen authorize reimbursement to him of the $12,124.50 that he had to spend in defending his actions as a duly appointed town official on the Southborough Zoning Board of Appeals. We realize that this is an unusual — but not unprecedented — request, and we hope to convince you that the circumstances in this instance not only warrant such a payment, but they require it morally and equitably. . .

He is asking you to decide that the Petitions for Removal and the Ethics Complaints were filed in bad faith with ulterior motives in an effort to subvert the decisions of the ZBA in which he participated.

The March 15th letter includes claims Bartolini was “exonerated of any wrongdoing”. That isn’t explained, but in his itemized billing, he refers to:

Received and reviewed Confidential letter addressed to me from Monica Brookman, Chief of the Enforcement Division of the State Ethics Commission indicating they “are not conducting any further investigation into [Leo’s] actions at this time.

In 2015-16 the ZBA, expecially Chair Leo Bartolini, faced massive public criticism for actions related to Park Central. Much of it centered on board decisions. But accusations included allegations about Bartolini’s verbal treatment of residents. In July of 2016, petitioning residents pushed selectmen to remove Leo Bartolini from the board. In petitions that summer, the complainants referred to evidence of repeated incidents of Bartolini being disrespectful to residents.

At the time, selectmen resolved the issue by meeting privately with Bartolini who volunteered to step down as chair but continue serving on the board. In September, a second petition with additional accusations again lobbied for Bartolini’s full removal from the board. In November, selectmen held a hearing to allow resident to make a preliminary case for official action. They determined that there was enough to trigger an official removal hearing. 

In December, the board held the removal hearing where Bartolini was represented by Heller. Attorney Gary Brackett told selectmen he was representing the petitioners. Among Bracketts arguments for removing Bartolini were claims of ethics violations related to undisclosed and improperly disclosed conflicts of interest.

Following the hearing, and before the board reached a decision, Brackett filed ethics complaints against Bartolini. The complaint alleged potential criminal wrongdoing by Bartolini in support of Park Central. Selectmen cited that ethics investigation prompted by the filing as rationale for putting off a decision on Bartolini’s removal. They said they would wait to hear results.

In March, Brackett filed more ethics complaints, purportedly (and questionably) on behalf of all the same petitioners.* This time, it was against the two selectmen who had recused themselves from the hearing – John Rooney and Bonnie Phaneuf. Brackett argued that if they were conflicted out from the hearing, then they violated ethics when participating in past discussions and decisions related to Bartolini and Park Central. That action appeared to prompt the board to resolve the removal decision which was still hanging in the air.

When selectmen made their final ruling in April 2017 not to remove Bartolini, Selectman Brian Shea admitted that Brackett’s action had moved him against removing Bartolini. He referred to the accusations against selectmen as raising doubts about the credibility of Bartolini’s opponents. Then-Selectman Paul Cimino referred to voting to hold the hearing as something he regretted. He told the room, “at this point the motivations of both the petitioners and the respondent alike are open to question in terms of the best interest this town.” Selectman Dan Kolenda supported Bartolini as not having been “inartful” but not intentionally demeaning to residents.

You can read Heller’s full letter to selectmen here.

The BOS meeting is scheduled for 6:00 pm in the Town House Hearing Room. The Bartolini request is the first item on the agenda.

*Upon questioning, Heller has repeatedly publicly answered that he represents everyone who signed the September petition to oust Bartolini. To my knowledge, Brackett has never named with resident(s) paid for his services and were his points of contact for representing the group. Meanwhile, some who signed the petition to remove Bartolini have commented they were not aware of filings made taken against Rooney and Phaneuf and opposed being associated with that decision.

Updated (4/27/18 3:18 pm): I recalled a fact about the September petition worth pointing out. A member new to the Board of Selectmen since the 2016-17 meetings and decisions has a link to the issue that may be seen as a conflict. This could result in a decision again being made by 3 out of 5 selectmen.

A letter sent by resident Lisa Braccio in 2010 to the Board of Selectmen complained of Bartolini’s disrespectful treatment of her. Public records of communications around the incident were cited in the September 2016 petition as evidence of a pattern by the ZBA official.

Braccio didn’t sign the petition, and she wasn’t involved in using her letter for the complaint. But at the removal hearing, Lisa Braccio addressed selectmen on the issue. She said they hadn’t adhered to their 2010 promise in a letter to her, which stated:

courtesy, respect and open dialogue are absolute prerequisites for continued membership on the ZBA. There is no room for compromise on these conditions. A basic principal of our Town philosophy is to encourage volunteerism and participation. Anything that is done to infringe on those ideals will not be tolerated.

She said that in 2016 Bartolini continued to be “disrespectful and argumentative when someone says something he disagrees with.” She didn’t specify that Bartolini should be removed. But she said she was angered to see that the problem was clearly not resolved and the letter selectmen sent her meant nothing.

Braccio replaced Cimino, one of the three selectmen who ruled in Bartolini’s favor. The only other change to the board was Brian Shifrin replacing John Rooney. Rooney had recused himself from the matter. I’m not aware of Shifrin having any conflict of interest.

{ 13 comments… read them below or add one }

1 David Parry April 27, 2018 at 11:30 PM

There is a very important matter here, which has NOT been addressed.

Ironically, this entire matter is being resurrected by the attorney representing Mr Bartolini. It is he who has opened the door to a full examination of serious accusations as to what happened at the December 2016 hearing, as well as AFTER it.

The matters occurring AFTER the hearing were apparently NOT KNOWN by the three Selectmen, when they voted in April 2017 to keep Mr Bartolini in office.

The question is: What would the vote have been, IF these matters had been known ?

To be clear on my interest in airing this matter: I was not involved in the Dec 2016 hearing, or after it. I live far from Park Central. I am not taking sides. I am presenting information. The source of this information, relating what apparently happened AFTER the hearing, comes from reading the following sequence of letters to the Editor, which were published and are copied below, EXACTLY AS THEY APPEARED in this blog.

Note, as you read these letters, that the matters raised have NOT been addressed by the Selectmen. I think most residents will agree that they should be addressed in future.

The letters follow. They tell the story:

——–

24 Karen
December 18, 2017 at 6:17 PM

Looking for clarification please. Recently Lucy wrote a comment complaining that the BOS did nothing after a ZBA member “retaliated” against a resident. What happened?

REPLY

25beth December 19, 2017 at 8:37 AM
I believe you are referring to this comment.

And, I believe that Lucy was likely referring to an allegation made by John Gulbankian family during the BOS hearing on Leo Bartolini. You can read about that here.

I am not aware that the Board of Selectmen, the Zoning Board of Appeals, Bartolini, or Bartolini’s attorney ever directly addressed that accusation publicly.

REPLY

26John December 19, 2017 at 4:52 PM
I would like clarification on this. I’ve heard that the BOS knows about this but has not addressed it? I don’t see how this can happen. It’s one thing to try to silence the public when they question you and another for this to happen. I would think it’s more than grounds for removal if true. Does anyone else have insight? Beth have you poked around the Police Department or downtown to see if this in fact happened?

This is disturbing coming from a small town government with an appointed official.

REPLY

27beth December 20, 2017 at 7:59 AM
I’m not an investigative journalist. So, no, I haven’t “poked around”. I shared the information presented in the meeting at the time.

REPLY

28John December 20, 2017 at 1:35 PM
Maybe somebody else has insight to it. It’s definitely something that is going to come up at the next BOS meeting. I’ve heard since yesterday that there was documentation by the police and at least one if not more of the BOS know about the incident. On top of it ConCom essentially prosecuted the citizen costing them thousands of dollars because a ZBA member decided to take it upon themselves to trespass on private property. This is a disgrace. I get that you are not an investigative reporter and respect that. This seems like a pretty disturbing story to say the least.

29Mira Cantor December 29, 2017 at 10:02 PM
Few people have heard of this matter, raised by John in the comments above, about the ZBA. This may be the reason why no official action has been taken by our Selectmen. Therefore I feel it necessary to add what I have learned.

A year ago, in December 2016, a ZBA member faced removal by the Board of Selectmen, and testimony was given by many residents, the great majority of whom spoke almost unanimously in favor of removal. No decision was made at that hearing, which was continued to a later date. This matter is closely related to the Park Central project, located off Flagg Rd. Residents can watch the Youtube videos of the Board of Selectmen hearings of Dec 6, 2016, and April 2017.

Within a few weeks of the December 2016 hearing, a resident who had testified at that hearing to have the ZBA member removed, reported that he, and others, had seen the same ZBA member openly trespassing on his property, despite the fact that the property was posted for “no trespassing”. Within days, the ZBA member reported a minor filling of wetland on that property to the Conservation Commission. A few days later, the resident received an enforcement letter from Con Com, requesting him to appear at a Con Com meeting, to explain the fill. The resident went to Con Com, disputed the minor fill, but to settle the matter he was required to hire a wetlands consultant, which cost thousands of dollars. This matter was resolved through new surveys, and needless cost.

The resident then went to the Police and filed a trespassing charge against the ZBA member. The Police went to the ZBA member, who denied trespassing, despite the witnesses. But the Police also went to Con Com and asked who had filed the notice of “fill” in the wetland. Incredibly, the Con Com agent admitted they knew who it was, but they refused to identify the person to the Police, to protect his identity. However, another town official overheard the person when he was reporting the wetland fill to Con Com, and that town official told the Police the person was the ZBA member.

Therefore there are multiple witnesses, corroborating each other, despite the Con Com cover up. But no action was taken by the Police or by the Board of Selectmen.

Why has no action been taken? One reason could be because the Selectmen did not learn about the trespass until May 2017.

In April 2017, the Selectmen reconvened the hearing (recessed since December). They voted to KEEP the ZBA member in office, despite finding sufficient cause to remove him, based on the evidence presented in December. One reason given for keeping him was stated by Selectman Shea, who said he resented the fact that the opponents’ attorney had filed charges of conflict of interest against another Selectman, who resigned. This was actually stated by Selectman Shea, and you can listen to it on Youtube.

However, at the time of the April hearing, the Selectmen did NOT know about the trespass. It was not until May 2017, that the Selectmen were informed of the trespass, in detail. But they took no action, DESPITE THIS NEW EVIDENCE.

What does this say about our town?

There is now only one way to get this matter dealt with. We need to bring it into the open. I ask others to write all they know about this situation, and to comment on it. Because it is the code of silence that has enabled this sort of behavior to continue.

REPLY

30John January 3, 2018 at 8:56 AM
Thank you Mira. I was unable to make the meeting last night due to a work engagement. I plan on emailing the Town Administrator and BOS Chairman using the information you have provided. I’m unaware if this was brought up last night. I don’t think we can continue to allow this behavior in this town and if our leaders do they should take a long look in the mirror and decide if they are the right person for the job.

REPLY

31John January 3, 2018 at 9:06 AM
I would suggest anyone still reading this thread do the same.
Daniel Kolenda ; Mark Purple ; bshifrin@southboroughma.com; Bonnie Phaneuf ; Brian Shea ; lbraccio@southboroughma.com

REPLY

32John Gulbankian January 3, 2018 at 9:38 PM
Since I was mentioned in the Comments section of “My Southborough” I want to make a few points for the sake of accuracy.

On December 6, 2016 I testified at the Board of Selectman public hearing and summarized the problems we, “The Gulbankian family” had encountered in our dealings with Mr. Lee Bartolini. This special hearing by Board of Selectmen, hearing statements from residents wanting Mr.Bartolini removed from ZBA. I was just one of many who testified. In the few minutes I had, I explained what we, “ The Gulbankian family” had experienced from the ZBA when requesting relief from unfounded complaints filed by neighbors. I explained how Lee Bartolini came onto our property and took photos, went through all of our buildings and greenhouses that, “He had the right to do so” even though he had no such permission or authority. During subsequent ZBA meetings Mr.Bartolini insisted on unrealistic costly unnecessary conditions which even caused neighbors of initial complaint to balk at what he wanted us to do.

Two weeks after the December 2016 hearing, we saw Mr. Bartolini driving down a clearly posted” No trespassing” driveway, trespassing over two pieces of private property arriving at our back yard, walking around . He did not ask our permission or contact us before his ‘inspection visit, nor did he have right to be there. He walked around back portion of our property to a steep bank which cannot be seen from Mt.Vickery Rd. where woodchips had been placed over bank to stabilize soil in proximity to intermittent stream.
On December 24, 2016 we received a letter of notice from the Southborough Conservation Commission about wood chips in our back yard in area next to wetland. That I was to appear at Con Com meeting in January 2017.

I contacted the police. Lt. Sean James came and filed a complaint against Mr. Bartolini trespassing on our property – again, I emphasize that he was there without permission.

Lt. Sean James returned later that day and told me that the Con Com secretary would not disclose who reported that we had placed wood chips in the back yard. However, Building Inspector said Mr. Bartolini had been complaining. Since building inspector overheard Mr.Bartolini’ s complaints as described to me by Lt. Sean James.

The Police report was sent to Mark Purple who I wanted to stamp / submit it as evidence and to make it a public record to BOS. I failed to get any written response despite my having e-mailed him multiple times and not getting any replies.

I went to the Town Hall and had Selectman Secretary stamp the Police Report and submitted it to BOS.

I called Selectman Shea in May of 2017 since he was chairman, he came over and was amazed at what Bartolini had done . I asked if he had known about it and said he would take care of it.

I followed up with Mr. Shea only to learn that nothing had been done about it.

Do the people know the facts? I live very close to a new development. I’m certain the Con Com members have driven by my property many times. I should like to ask “Why is it that Mr. Bartolini felt obliged to make them aware of the violation about wood chips in my back yard if it was so offensive and flagrant? Why did he do so only two weeks after I spoke at the meeting?

Hopefully, the recitation of the facts can allow one to draw one’s own conclusion.

https://www.youtube.com/watch?v=m1gqEO0g6ss

REPLY

33D. McGee January 4, 2018 at 9:15 AM
Thank you for sharing your experience with Bartolini. He is an absolute disgrace to this town, and the BOS should be embarrassed they didn’t remove him despite the overwhelming testimony, evidence, conflicts and concerns about the manner in which he conducted business as ZBA Chair. At ZBA meetings he has been arrogant, condescending to residents and frequently wrong on his knowledge of the zoning laws.

Your story is chilling…a ZBA member trying to intimidate and retaliate against a resident who spoke out against him. It is entirely unacceptable that the BOS had this information yet took no action. What will it take to get this guy off the ZBA and restore some credibility to the committee and BOS?

REPLY

34Karen January 5, 2018 at 9:28 AM
This is an outrageous sequence of events illustrating flagrant abuse of power. It appears that in both cases (Parry & Gulbankian) one rogue individual acted unilaterally and then pulled others into the incident only when it served them. These are costly mishaps. As a citizen of Southborough, I’m sorry this happened to you John.

——

CONCLUSION. The letters ended there, with NO conclusion because there was no follow up. No official action was taken. The matter stands unresolved.

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2 concerned neighbor April 28, 2018 at 6:08 PM

After hearing Mr. Gulbankian’s story, let’s just go back and review what Leo Bartolini’s attorney is claiming….
….To present his client as being persecuted by “disgruntled, malicious and mean-spirited individuals” with “ulterior motives” and with the intention of subverting “the decisions of the ZBA in which he participated” is so absurd, I cannot imagine that the BOS will take it seriously. Whatever pushback Mr. Bartolini has experienced, he has brought on his own head. He has subverted the democratic process in this town by intimidating people with threats of retaliation. Who will have the courage to speak their mind in town meetings after hearing what happened to the Gulbankian family- who were targeted and then essentially blown off by the BOS. If the BOS grants attorney Heller the request for reimbursement of legal fees it will be a continuation of the dysfunction. Southborough residents will know that their elected board is not acting in their interests….. isn’t there a BOS election coming up???? Hmmm.

While Bartolini has served on the ZBA for a long time he has not behaved like a ‘dedicated public servant.’ He is the one who is mean-spirited and has demonstrated ulterior motives.

And by the way: The letter from the state ethics DID NOT exonerate Leo Bartolini. All it did was claim they would not pursue the issue at this time.

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3 Concerned Voter April 29, 2018 at 1:43 PM

There are multiple issues here, dominated by the paid advocacy of this attorney who has grossly mischaracterized and libeled the individual he references as a “hooligan.”
No such removal occurred as described here. I hope the individual sues for libel. He is NOT a hooligan.

The citizen referenced by this attorney is an intelligent responsible taxpayer who expressed his legitimate concerns over the fact that the public had no copies of documents in the possession of the ZBA (August 24, 2016 hearing) and could therefore the content could not be properly reviewed or discussed by the public, a legitimate matter of public disclosure in a public hearing.

He was publicly objecting to that fact and stated that the decision should be held off a bit until properly reviewed. However, that never happened. Another ZBA member moved out of town the next day (his house was on the market since April).

BOS is the appointing and removal authority. It is their job to hold any “employee,” appointed or elected accountable for their behavior.

On the following tapes, the ZBA individual involved was called out not only for alleged lack of knowledge on the law and procedure, including by other public officials and town counsel(?!!), but for alleged improprieties regarding behavioral and conduct issues as well, including disrespect of the public. Concerns over unprofessional behavior were expressed by OTHER PUBLIC OFFICIALS, for goodness sake!

On the following tape, a letter written by former BOS Chair, Mr. Rooney, is referenced (2.08 minute mark) addressing concerns over bad behavior. The testimony given is by a current BOS member, restating a 2010 letter SIGNED BY ALL THREE BOS MEMBERs. The letter stated that there was “no room for compromise.”

The reader can be the judge: see approximately the 2.08 minute mark, the 2.25 mark for excerpts from tapes – and particularly the 3.50 mark for procedural questions on the Use Variance.

https://www.youtube.com/watch?v=m1gqEO0g6ss

One concern involved a member of the public (a grown woman with an advanced degree) being called “the girl” by the ZBA member involved. Not only did this ZBA member’s attorney not apologize for this behavior, HE DEFENDED the behavior and lashed out at the victim(??!!). One BOS member called out that attack as improper.

Importantly, since that time, reportedly and allegedly the same individual ZBA member has addressed current WOMEN PUBLIC OFFICIALS by the SAME TERM(??!!). Can BOS or Advisory ask them about it? Why is nothing done? Could it be because the BOS implemented no meaningful repercussion or sanction in the first instance?

This way of referencing grown woman professionals cannot be sanctioned or given any kind of even tacit approval. That term must not be used. This is the ultimate form of disrespect. It is NOT ok in the workplace or for use by any public official.

Thank you.

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4 Mike Fuce April 29, 2018 at 2:21 PM

I agree with Mr. Parry, and I would also add if we don’t stop attacking people’s character versus the issues ie. all Democrats versus President Trump, the partisanship even at a little town meetings is over the top. I said this was going happen and I agree Mr. Bartoloni should be reimbursed. You can’t protect your little area of the Southboro forever, and just because Joe knows Cindy does not mean that they have broken the law because they spoke privately, they have that right. I know the Bartolini‘s have lots of private business interest in our town but he has that right. He also has a lot of friends who he talks to and he has that right. Consider what you people are doing.

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5 Concerned Voter April 30, 2018 at 7:16 AM

Sorry, but could not disagree more. The individual in question was almost not appointed years ago at the original time of appointment due to issues commented on by BOS then. The timeframe referenced in the tape goes back to 2007, with a letter written by Mr. Rooney in 2010 (signed by all three BOS members).

The above comment refers to partisanship, and then asks consider what “you people” are doing. Does “you people” include the public officials who call out the concerns in the tapes??

No individual, in the workplace or in public position, has the right to call any grown women professional, “the girl.”

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6 couldyourepeatthatphrase April 30, 2018 at 9:33 AM

It does seem more than a bit puzzling why someone who is a developer and owns a construction company would have a seat on a zoning board. A conflict of interest would seem to be the most obvious flaw in an appointment of someone with those associations.

As far as the ‘girl’ references to adult females, at best the phrasing was unfortunate. Was it unlawful? Decidedly not. Tempest in a teacup?

Back to the subject at hand, did Mr. Bartolini voluntarily sign a contract to retain the services of a lawyer? To what end? Should Southborough taxpayers be paying for Mr. Bartolini’s legal defense? Why does the town of Southborough want to continue to have such a controversial person on its ZBA? How is the town served by Mr. Bartolini’s continued presence on the ZBA? His ongoing membership seems to de-legitimize the board and any decisions it may render.

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7 Concerned Voter April 30, 2018 at 12:37 PM

Agree with the many good questions above.

However, sorry, I do not agree at all with your “teacup” analogy. That term alone (“teacup”) seems dismissive or minimalizes a sex based, discriminatory term. Not ok. Not ok in the workplace. Not ok by a public official. Period.

There are many professional women (and men) who would not and do not tolerate pejorative, derogatory terms and/or harassment. It’s 2018, for goodness sake. One would not use the equivalent term, directed toward a man either. Terms like that are derogatory, insulting, slanderous. The law does afford protections.

That said, do agree with the other many good questions, especially in light of the alleged history of controversy dating back to 2007 and comments and letters by other public officials. Thank you.

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8 mike fuce April 30, 2018 at 2:02 PM

Oh my goodness, slanderous, sounds like you are looking for grievances. Stop it, move on, and pay his legal bills unnecessarily accumulated but your attacks. That’s a grievance. And I agree, no one in the workplace or even privately would use the terminology today. Give the man some grace and stop with the suspicious, “oh my, he’s a big bad contractor”. He has as much right to be there as you or I.

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9 Concerned Voter April 30, 2018 at 3:44 PM

No, not it at all.

You are entitled to your opinion, however in the small minority it may be. The tapes and the concerns of the public, public officials, as well as town counsel, speaks for themselves. It is self-evident what the concerns have been since 2007.

Your characterization of “big bad contractor” is simply silly. The public (and public officials) have been expressing their legitimate concerns since 2007 (again, see the tapes), with a letter written in 2010 signed by all BOS members. The individual in question had to write a written apology. We can agree on one thing: time for everyone to move on! Thanks.

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10 concerned neighbor April 30, 2018 at 9:52 PM

These are all good questions. Thanks for your comment!

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11 Al Hamilton May 1, 2018 at 9:32 AM

Leaving aside the specifics of the particular matter there is an important issue here:

The town, and taxpayers receives substantial benefit from the dozens of volunteers that staff various boards or committees. It is not easy to find these volunteers. Over the past decades, various well intentioned rules have added to the risks and burdens of serving, these include the open meeting laws, public records laws, conflict of interest laws, and others. While each of these is probably good they have raised the administrative burden on volunteers and have exposed each volunteer to greater risks to their personal reputation and pocketbook.

The last decade or so has seen several complaints, justified or otherwise, to the AG or other state officials about the behavior of these volunteers. Is it any wonder that numerous boards and committees remain understaffed or dormant for lack of a quorum?

The BOS should develop a public policy about what it will and will not do to protect volunteers (who are really “special employees” of the town) in the event that allegations are unfounded or they are cleared of any wrong doing. Those that volunteer for the town deserve to be able to fairly weigh the risks of serving.

With respect to the issue at hand, if you are dissatisfied with the performance any volunteer, the voters have only one real recourse and that is with the elected members of the board that appointed the person in question.

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12 Theresa May 2, 2018 at 9:58 PM

Self Service masquerading as Public Service.

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13 Louise Barron May 3, 2018 at 10:17 AM

Way too many conflicts on our boards between builders/developers and board members. This is a pattern here, and one of the largest conflicts this town needs to correct, if it wants to govern by the needs of the people, not those of special interests. You know what I mean!

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