During the last meeting of the Board of Selectmen, David Kowalski, chairman of the Board of Health, talked about water sample testing procedure, at 4:29 (the cable commission has trouble with the sound on a regular basis, there is no sound to 4:29 minutes.)
Wettlaufer took advantage of the situation and accused Ray Korny of being in violation of an ethics law, (at 9:29).
Ray Korny is a member of the Board of Health and took on the position to run the brush dump. According to Korny, he “inherited” the position from Santos and (Vemier ?) who both resigned.
Under normal circumstances, no one would give a dam, but Wettlaufer claims that Korny is in violation of M.G.L. c.268A, s.21A.
Wettlaufer: “You have no idea how aggravated I am over this..” (at 11:25.) Wettlaufer, indeed very aggrevated, explained that he could have done three different things about the situation; do nothing, call Korny and make him aware of the situation, or call the State Ethics Commission. He then explained how he did the right thing by calling Korny.
“He [Korny] is eligible for a ten thousand dollar fine.”
Wettlaufer then read the statute c.268A, s.21A, (at 12:40), which provides:
Except as hereinafter provided, no member of a municipal commission or board shall be eligible for appointment or election by the members of such commission or board to any office or position under the supervision of such commission or board. No former member of such commission or board shall be so eligible until the expiration of thirty days from the termination of his service as a member of such commission or board.
The provisions of this section shall not apply to a member of a town commission or board, if such appointment or election has first been approved at an annual town meeting of the town.
“He [Korny] has never been approved at an annual town meting and that’s the reason town counsel called me, because he was concerned about that.. and this is a direct violation of the law. There is no other exception to this statute [c.268A, s.21A],” (at 13:06.)
Wettlaufer’s statement is disingenuous at best.
First, it is ludicrous of Wettlaufer to claim that McCaughey “was concerned.” How would McCaughey even know or care who runs the brush dump?? I think that Wettlaufer called McCaughey. Second, I believe that Wettlaufer knows that there is another way to appoint Korny.
At first sight, the statute read by Wettlaufer is unambiguous and seems to validate Wettlaufer’s claim.
Wettlaufer emphasized and reiterated his claim that there would not be a legal way to have Korny appointed to the brush dump keeper with the following statements:
“The annual town meeting is the only way that you could be appointed to run the brush dump, (at 18:36).” And a few sentences later, “there is no exemption in the law for that..” (at 19:48.)
After Korny disagreed, Wettlaufer: “I also have town counsel saying the same thing..”
(At 19:00, Wettlaufer read something pertaining to section 20. What ever he read, it is not a quote of a statute, is taken out of context, and has no meaning.)
However Wettlaufer is wrong and here is why:
Section 21A was approved January 5, 1968 by the Acts of 1967, Chaps. 888, 889. Here is a legal opinion pertaining to section 21A, written by Lauren Goldberg, ESQ., Kopelman & Page:
The [Ethics] Commission has explained in EC-COI-92-306 that sections like 8A, 15A, and 21A have their roots in the common law doctrine of incompatibility of offices. In Gaw v.Ashley, 195 Mass. 173 (1907), the Supreme Judicial Court first applied this doctrine to hold that a municipal board could not appoint its own member to a position under the board’s supervision. While the court seemed chiefly concerned that the appointee would continue to sit on the board, and thus that his present colleagues would be supervising his performance, the court phrased the prohibition more generally, as prohibiting the appointment itself. Soon after the court again applied this prohibition, in Attorney General v. Henry, 262 Mass. 127, 132 (1928), the Legislature enacted a narrow exception, allowing the town meeting to approve an otherwise prohibited appointment [footnote omitted]. St. 1929, c. 36, enacting G.L. c. 41, § 4A.7 The Commission also observed in EC-COI-92-30 that the Supreme Judicial Court later held that G.L. c. 41, § 4A otherwise codified the common-law rule; and that shortly after § 21A of G.L. c.268A was enacted in 1967, the court observed: “The legislative purpose behind the enactment of [§ 21A] seems to confirm the purpose which was contained in G.L. c. 41, § 4A.” In EC-COI-93-19 the Commission further observed as to the purpose of §§ 8A, 15A, and 21A: This incompatibility includes the potential danger that a board member will attempt to persuade his fellow colleagues to appoint him or otherwise engage in conduct which might give the appearance of such self-dealing activity, and the danger that, as a result of alliances formed through service together on a board, board members will be persuaded to reappoint one who, under different circumstances, they would conclude should be removed from office.To read the entire legal opinion written by Lauren Goldberg, click here!
Where the Board of selectmen is the appointing authority for an entity which has its own statutory responsibilities, such as the members of the Board of Health and the officer who operates the brush dump, the provisions of G.L. c.268A, s.21A are not implicated and do not forbid the Members of the Board of Selectmen to appoint a member of the Board of Health to run the brush dump. Moreover, c.41, s.11 provides specific authority for the board of selectmen to appoint officers to fill vacancies in town offices.
There is a legal way to appoint Ray Korny, see c.41, s.11. The Board of Selectmen can appoint Korny to run the brush dump, the members of the Board of Health can not.
If we would have competent legal advice, town counsel Vincent McCaughey would not just agree with anything Wettlaufer needs to create his own reality that fits his agenda.
In a similar situation in the town of Winchendon, attorney W. Giorgio of the law firm Kopelman & Page stated in a letter to Mr. Kreidler, Town Manager for the town of Winchendon:
In our experience, the state Ethics Commission interprets the term `supervision' in 21A literally. For boards like the Zoning Board of Appeals, the Planning Board and the Conservation Commission, which have statutory and bylaw authority and do not answer to or require approval of the Board of Selectmen, such boards are not `under the supervision' of the Board of Selectmen and the prohibition in c.268A, 21A does not apply,
The Board of Health has also statutory and bylaw authority.
The quoted part of the letter above was published as part of the piece, “Official who was rebuffed resigns from zoning board ,” published on Oct. 17, 2007 in the Worcester Telegram.
Section 21A primarily applies if the Board Of Selectmen wishes to appoint one of their own to an appointed and not elected position. In most cases, it is used to place an article on the town warrant to authorize appointment of one of the selectmen to the position of town manager. Section 21A is drafted after section 15A. Section 15A imposes the same restrictions on members of county commissioners as s.21A does on town officials.
Of course, Wettlaufer is right in one point, the Board of Health is prohibited to appoint one of their own to run the brush dump, only the members of the Board of Selectmen have the authority to do so. Wettlaufer is disingenuous by claming, “The annual town meeting is the only way that you [Korny] could be appointed to run the brush dump,” and, “there is no exemption in the law for that..”
Wettlaufer is wrong and he knows it;, Wettlaufer inadvertently acknowledges that the Board of Selectmen could appoint Korny to run the brush dump, (at 17:59). He then claimed that Korny failed to submit a disclosure form pursuant s.20, subsection (d). Wettlaufer is wrong again, Subsection (d) provides:
(d) to a special municipal employee who files with the clerk of the city, town or district a statement making full disclosure of his interest and the interests of his immediate family in the contract, if the city council or board of aldermen, if there is no city council, board of selectmen or the district prudential committee, approve the exemption of his interest from this section,The form is not mandatory; if Korny has nothing to disclose (no interest in contracts) he has no reason to submit such a form!
Wettlaufer’s claim, “I also have town counsel saying the same thing..” is typical. In the piece, “Who is ditching who?” I wrote about the dismal record of town counsel Vincent McCaughey and suggested the town would be better of hiring Kopelman and Page, P.C., and commented:
Vincent McCaughey reapointed!
It is shameful that the selectboard decided to reappoint Vincent McCaughey during last nights selectboard meeting despite his poor record. As stated in this piece, Holland needs a guy like McCaughey because a reputable firm such as Kopelman and Page, P.C. would give sound legal advice and would reluctantly waste hundreds of thousands of dollars defending indefensible suits to the detriment of the community. Earl Johnson and James Wetttlaufer need individuals such as Vincent McCaughey and Kevin Gleason to pursue their personal agendas. During his rage inappropriately bashing Korny by making false claims, Wettlaufer also included a statement geared towards rewriting history with his ludicrous claim: “Just look back how we prosecuted the illegal actions of our police chief, ok ? I was the first one to jump on that!”
The brush dump offers Korny an opportunity to engage and talk to the community. Wettlaufer does not like it as he wants to be re-elected next year; hence his attempt to discredit Korny.. it is that simple!
If Wettlaufer’s concern would have been genuine and Wettlaufer a prudent man, Wettlaufer would have addressed the issue the proper way, the way he did it with town officials who do not engage in controversy and dare to challenge him. The prudent way to address this issue would have been in executive session. Letters Wettlaufer allegedly never received and Korny claimed having sent, I would put my money on Korny’s claim
Brian Johnson entered the stage at the end of Wettlaufer’s attack on Korny asking:
“I just wondered, Is Korny responsible for the fine from the Ethics Commission if he is wrong?” (at 23:14) Wettlaufer’s response was quick and affirmative. Earl Johnson had a front row seat to watch the act.
Kennedy then asked, “I like to know when the brush dump is going to be open again..” (Good question Mr. Kennedy!)
Oops, Mr. Wettlaufer, if your statements were correct the town would have to do without the brush dump until the next annual town meeting!?
Wettlaufer suggested to Kowalski:
“You have the option of anyone of you going down there operating it, you could also appoint someone at your regular meeting..” (at 24:07)
Mr. Wettlaufer, which statute would give the Board of Health the authority to do that? As far as I know, only the Board of Selectmen has that authority. Having said that, it becomes obvious that you misinterpreted s.21A...and, Mr. Wettlaufer, isn’t what you suggested just what they did, sending someone (Korny) of them down there?
If Wettlaufer would be honest, he would have said, “Ray, I don’t like you because (...) and I (we) do not appoint you to run the brush dump. I will discredit you so you don't have a chance at the next elections...
August 30, 2010, Peter Frei
To: Holland Select Board
Re: Wood Recycle Center Dug Hill Road
I would like to comment and report on an issue that has to be brought to the attention of this Board as well as other Departments. As recent as the weekend of June 5& 6, 2010, I have noticed that there is illegal dumping of contraband at our Wood Recycle Center. In the past there has been dumping of tree waste into areas that are not designed to accommodate such matter, i.e. in road access ways and in areas that would limit the access to Town residents the ability to safely unload their vehicles and trailers.
In the dates above and also to include the weekends of May 8& 9 and May 22 & 23, the contraband not only was unloaded haphazardly and placed in such a way as to potentially cause injury to Town residents, but to also place the onus of responsibility and explanation on the Brush Dump Attendant on why this is allowed to happen.
Some of the so called "contraband" includes full length trees, tree stumps, some boards with nails, other maybe identifiable pressure treated lumber, large rocks of about 50 - 80 pounds, along with gravel and other assorted debris and oil based paving material.
These items have to be removed. The Recycle Center, through the Board of Health has generated a list of items accepted or rejected and we will follow what has been agreed to.
There are only 3 (three) keys for the gate. One for the attendant with a spare, and one for the Highway Department. This dumping might be from this department as they have been working on catch basins and such. I have not been able to get in touch with the Highway Department as there have not been any responses to my phone calls.
When this pile of brush is chipped in the future, the equipment of the vendor might be damaged due to having rocks imbedded in the normal brush and then run into their chipper. As of now, we do receive a much lower price on the chipping as it is done somewhat as a community service by the owner of the Company. We are in a position to keep on good terms with this Company as long as we adhere to our policy on what is allowed and what is not. We would not want to pay a higher price for a service when we have the ability to control that price by using a little common sense.
If this dumping is not of any Town Departments then I suggest maybe a relocking of the facility will be a deterrent. Let me know and I will organize this endeavor.
Raymond P. Korny Recycle Center Attendant
Holland Select Board
Holland Board of Health files