February 14, 2013

Division of Open GovernmentOffice of the Attorney GeneralOne Ashburton PlaceBoston, MA 02108-1518

Re: Complaint of Open Meeting Law ViolationsComplainant: Edward MacDonald, 69 Melrose Street, Adams, MA 01220 774-670-8794Attorney: Stanley L. Weinberg, 47 Memorial Drive, Shrewsbury, MA 01545 508-842-1556Defendant: Conway Board of SelectmenReceived: February 12, 2013

Dear Sir / Madam:

The Board of Selectmen of the Town of Conway received a complaint alleging Open Law Violations from the above referenced attorney for the above referenced complainant on February 12, 2013.

The responses to these allegations and demands for action are enclosed.

Respectfully submitted,

John P. O'RourkeChairman, Board of SelectmenTown of Conway

JOR/

BY CERTIFIED MAIL RETURN RECEIPT REQUESTED

PREFACE TO RESPONSES TO THE COMPLAINTS OF EDWARD MACDONALD

Let me preface my responses by stating that the decisions made in both of these instances were solely mine and did not involve “secret meetings or deliberations” as alleged by Stanley Weinberg, the attorney for Edward MacDonald.

In the instance of the complaint occurring on January 7, 2013, I made the decision to place a candidate on the interview list because, as a new Town Administrator, Edward MacDonald did not have enough knowledge of the candidate or experience in Town to make the correct decision in this case.

In the instance of the complaint occurring January 14, 2013, I made the decision to introduce a motion at the meeting of the Board of Selectmen to accept the resignation of Edward MacDonald, but not to accept the notice he offered based on his dishonest behavior.

These allegations of Open Meeting Law violations are distractions to cover the real reasons for his resignation, to legitimize his resignation and as a defense to allege contract violations against the Board of Selectmen to collect for more vacation, sick, personal and compensatory time than was owed to him.

COMPLAINT: JANUARY 7, 2013

On January 7. 2013, Selectmen O'Rourke and Bean contacted Town Administrator Edward MacDonald with respect to interviews that were being held to fill a vacancy in the position of Highway Superintendent. Mr. O'Rourke and Mr. Bean told Mr. MacDonald to place the name of a certain person on the agenda for the Board's meeting at which its interviews were going to be held because "the Board wanted to interview” that person. No prior meetings of the Board or notices of their meetings reflect any actual or proposed discussion or deliberation by the Board with respect to that person's filling the vacancy, so the Board decision to include that person in its January 7th interviews had to have been made secretly and in violation of the OML.

RESPONSE TO JANUARY 7, 2013 COMPLAINT

The instructions on the website of the Attorney General specifically state under “Open Meeting Complaint Process, Step 1: Filing a Complaint with the Public Body” that “A complaint must be filed in writing with a public body within 30 days of the date the alleged violation, or if the alleged Open Meeting Law violation could not reasonably have been known at the time it occurred, then within 30 days of the date it should reasonably have been discovered. The complaint must be filed using the Open Meeting Law complaint form available on the Attorney General's website. Public bodies, or in the case of local public bodies the municipal clerk, should provide members of the public with a copy of the complaint form upon request.” (Emphasis added)

This complaint was not filed using the Open Meeting Law Complaint form available on the Attorney General's website with the 30 day filing period. The date of the alleged complaint was January 7, 2013 and the complaint was filed with the public body using the Open Meeting Law Complaint form on February 12, 2013, thirty-six (36) days later.

HAD THIS COMPLAINT BEEN FILED ON TIME ON THE PROPER FORM, MY RESPONSE WOULD HAVE BEEN:

The Town Administrator works for and reports to the Board of Selectmen. As Chairman of the Board of Selectmen, I directed the Town Administrator to include a candidate in the interview process who the Town Administrator left out of the process after reviewing resumes. Resumes often times do not tell the whole story. The one qualification that this candidate did not have on paper, he was in the process of completing. In my opinion, that qualification was minor when weighed against the specific knowledge and practical experience of the candidate for this position. In all other areas of his qualifications, he was deserving of an interview. The Town Administrator, as a new member of the Town staff, did not know all of the information he needed to know to make the correct decision on that particular candidate. As Chairman of the Board of Selectmen and having more information to make that decision, it was my prerogative to overrule the Town Administrator. I made the decision to include that candidate in the interview process.

The characterization that my actions in this matter were “political interference” that “pressured and compelled” Edward MacDonald to resign is nonsense.

COMPLAINT: JANUARY 14, 2013

On January 14, 2013 at its meeting scheduled for 7:00 pm, the Board voted to terminate the employment of Mr. MacDonald Not only was such vote unlawful and in violation of the employment contract between the Town of Conway and Mr MacDonald (an issue that is being addressed more completely in separate correspondence to the Board), it was in violation of the OML because such employment termination issue was not identified in any notice for that meeting. and the vote to terminate appeared to be a fait accompli based on what reasonably appears to have been prior discussion and deliberation by the members of the Board outside of a meeting duly posted In accordance with the OML. Mr. O'Rourke. the Chair of the Board had earlier that same day discussed with the Town Treasurer the preparation of a final payroll check for Mr. MacDonald, further evidencing that the termination decision had been made by the Board in secret meetings and deliberations.

RESPONSE TO JANUARY 14, 2013 COMPLAINT

On January 7, 2013 at the very end of the Board of Selectmen meeting, Town Administrator, Edward MacDonald, when asked for the Town Administrator report, stood up from his chair and handed each member of the Board of Selectmen his one sentence letter of resignation that simply stated “I am giving you my letter of resignation, effective February 7, 2013.” The resignation was without any forewarning and shocked the Board. When I asked for an explanation, Mr. MacDonald ignored my request, declined to answer, walked out of the meeting room and left the Town Offices.

On October 18, 2012, the Board of Selectmen hired Mr. MacDonald as the full time Town Administrator to start his employment on November 26, 2012. He stated that he had to give the Town of Chester, where he was working as the Town Administrator, 30 days notice. The Board took him at his word and trusted that he would do as he promised and for which he was contractually obligated.

I received a phone call from a reporter for The Recorder on January 10, 2013 asking me, “Did you know that Edward MacDonald is still working as the Town Administrator in Chester?” I was shocked and indicated that I had no idea that he was still working for Chester. January 10 was 84 days after October 18, 2012 and 45 days after the start of his employment on November 26, 2012. In an article that appeared in the Saturday, January 12, 2013 edition of The Recorder, entitled “Conway Surprise,” Donald Ellershaw, Vice Chairman of the Board of Selectmen for the Town of Chester, was quoted as saying that Edward MacDonald had never given notice to the Town of Chester or resigned his position with the Town of Chester. (See enclosed text of “Conway Surprise”)

Edward MacDonald was the Town Administrator for the Town of Hatfield for two (2) weeks or less in the Spring of 2012 before resigning that position. In an article that appeared in the February 12, 2013 edition of The Recorder, the Board of Selectmen for the Town of Hatfield also believed he had resigned from his position as Town Administrator for the Town of Chester. (See enclosed text of “Former Conway administrator alleges violations”) Edward MacDonald, not only deceived the Board of Selectmen for the Town of Conway, but also apparently deceived the Board of Selectmen for the Town of Hatfield. His statements to and actions before both of these Boards of Selectmen convinced them that he either would resign or had resigned his position from the Town of Chester when indeed he had not. Edward MacDonald deliberately deceived the six (6) Selectmen from these two (2) Boards of Selectmen.

The Board of Selectmen for the Town of Conway hired a full time Town Administrator and was promised and expected just that. The Board was not interested in hiring anyone who was dividing his allegiance, time and efforts between Conway and another town, aside from the fact that this could be a conflict of interest under certain circumstances.

On Monday, January 14, 2013, I consulted with our Town Counsel and the Chairman of the Personnel Committee on this matter. I was advised that the actions of Edward MacDonald were most probably a breach of contract and that the Board of Selectmen did not have to accept the 30 day notice that he had offered.

On January 14, I directed the Town Treasurer to print a final check for Ed MacDonald in the amount of $3,642.61 which included his last two week regular pay period, 4 days of Compensatory Time for the four days he volunteered to work between October 18, 2013 and his start date of November 26, 2013 and accrued vacation, sick and personal time for the 43 days that he worked.

At about 3:00 PM, January 14, Edward MacDonald, without notifying me that he would not be in attendance at the meeting of the Board of Selectmen that evening, walked out of the Town Office. He commented to a member of the Town staff on his way out that he “was not going to stay around to take any shots” or words to that effect.

Edward MacDonald, as Town Administrator, was responsible for preparing the agendas for the meetings of the Board of Selectmen. Having handed the Board of Selectmen his resignation at the very end of the meeting of the Board of Selectmen on January 7, discussion of that event was an obvious follow up at the next meeting of the Board of Selectmen on January 14 and should have been included on the agenda by the Town Administrator without prompting by the Chairman of the Board of Selectmen. Other items, including obvious follow up items, were routinely placed on the agenda by Edward MacDonald and by his predecessor, Administrative Aide, Tom Spiro. It is very curious that Edward MacDonald, an experienced Town Administrator, would not place such an important item about himself on the agenda. One has to ask, “Was this item deliberately left off the agenda by the Town Administrator so he would

have something about which to complain?”

At the meeting of the Board of Selectmen that evening, motivated by his dishonest behavior, I moved to accept the resignation of Edward MacDonald and not to accept his offer of 30 days notice. The motion was seconded and passed unanimously. Edward MacDonald was not in attendance at that meeting, although his stated hours on Mondays were 9:00 AM to 9:00 PM and he was obligated to be there, because he was in attendance at the meeting of the Board of Selectmen in the Town of Chester. His obligations to the Town of Chester interfered with his contractual obligations to the Town of Conway. (See copy of the minutes from January 14, 2013 meeting of the Board of Selectmen posted on the Town of Chester website that is enclosed.)

There were no “secret meetings or deliberations” as alleged by Stanley Weinberg, the attorney for Edward MacDonald. The fact that Edward MacDonald was dishonest and had violated the trust of the Board of Selectmen and his contract with the Town was public information appearing in an article in The Recorder on Saturday, January 12. The Board of Selectmen had no obligation to accept a 30 day notice from a Town Administrator who had acted dishonestly and had so blatantly violated a basic element of his contract.

RESPONSES TO DEMANDS FOR ACTION:

Accordingly, demand is hereby made that (a) the January 14, 2013 vote to terminate the employment of Mr. MacDonald be rescinded,

Response:

There was no vote to terminate the employment of Edward MacDonald. The motion was to accept the resignation of Edward MacDonald and not to accept the 30 days notice he offered. The motion passed unanimously.

(b) that the Board prepare and release for public inspection minutes of the secret meetings held concerning the employment termination decision held on January 14, 2013, and

Response:

There was no “employment termination decision” and there were no “secret meetings.”

(c) that the Board of Selectmen comply with the Open Meeting Law in all future deliberations and meetings.

Response:

The Board of Selectmen of the Town of Conway always complies with the Open Meeting Law.

I certify that the information contained herein is true to the best of my knowledge

Date: February 14, 2013

Respectfully submitted,

John P. O'RourkeChairman, Board of SelectmenTown of Conway

Conway surprise

By KATHLEEN McKIERNAN Recorder StaffFriday, January 11, 2013 (Published in print: Saturday, January 12, 2013)

CONWAY — While Ed MacDonald has worked as Conway’s first full-time town administrator over the past two months, he has also continued to work at his old job — part-time town administrator in his home town of Chester.

Conway selectmen’s Chairman John O’Rourke said Friday the selectmen were unaware that MacDonald was working two jobs.

“Ed was hired as a full-time town administrator. The impression he gave us is he gave Chester his 30-day notice and left that job,” said O’Rourke. O’Rourke said MacDonald gave the selectmen no signs that he was still employed by Chester.

“Certainly as a full-time town administrator, you can’t do a job for another town at the same time you’re working for another town,” O’Rourke said.

The moonlighting apparently is a moot issue now, as MacDonald surprised the selectmen on Monday when he handed in his resignation letter.

In a one sentence letter, MacDonald wrote “I am giving you my letter of resignation, effective Feb. 7, 2013.” He gave no reason for his departure and would not comment to the press.

The selectmen hired MacDonald on Oct. 24. The position was a salaried 37.5 hours per week job with the salary set at $52,000. Before formally starting his job, MacDonald laid off the former town administrative aide, Tom Spiro, citing overlapping responsibilities.

During this time, though, the Chester selectmen were aware their town administrator had taken a second job in Conway.

Chester Selectman Donald Ellershaw said MacDonald “never resigned. He’s currently employed in Chester.”

When contacted by phone on Friday by a Recorder reporter, MacDonald did not respond and hung up.

On the Chester town website, MacDonald is listed as the town administrator.

MacDonald has worked in Chester for three years. Ellershaw, who called The Recorder to learn more about his sudden departure from Conway, said the Chester town administrator is “in a sense” part-time.

To fit in the two jobs, MacDonald adjusted his hours in Chester. Before starting his job in Conway, MacDonald worked 9 am to 3 pm in Chester Monday through Wednesday. He adjusted his hours later to Thursday and Friday evenings and Saturdays, Ellershaw said.

“He didn’t reduce his hours by any means,” Ellershaw said. “He’d come into work after working in Conway. His duties were still the same.”

Ellershaw, who was re-elected in May, said he has a good working relationship with MacDonald.

“He gets it done. The tasks he needs to accomplish are always completed,” Ellershaw said.

Located in the Berkshire foothills, Chester is a small rural community and a former mill town with a population of about 1,250 people. Conway’s population is about 1,900.

Former Conway administrator alleges violations

By KATHLEEN McKIERNAN Recorder StaffMonday, February 11, 2013 (Published in print: Tuesday, February 12, 2013)

CONWAY — The former town administrator, Ed MacDonald, claims the Board of Selectmen violated state open meeting law and demands a payout of $14,301 in owed wages and benefits.

Selectmen’s Chairman John O’Rourke, however, refuted the claims and referred the issue to the town’s lawyer in a statement backed by selectmen Rick Bean and Jim Moore at Monday evening’s meeting of the board.

“The allegations concerning the ‘Complaint of Open Meeting Law Violation’ are unfounded,” O’Rourke stated. “These allegations are being used as an attempt by Mr. MacDonald to legitimate his excuse to resign. The real reason for his resignation will be revealed in the facts surrounding his resignation.”

In two different letters dated Feb. 4., MacDonald’s attorney, Stanley L. Weinberg of Shrewsbury, addresses the two complaints. The letters are the first correspondence the selectmen have had with MacDonald since he surprised them with a resignation letter on Jan. 7 after only 47 days on the job as the town’s first full-time town administrator.

Though MacDonald gave a 30-day notice, the selectmen voted to terminate his employment on Jan. 14, after discovering MacDonald had never quit his other administrative job in Chester.

MacDonald could not be reached for comment on this story.

In the first letter, Weinberg writes on Jan. 14, the selectmen voted to terminate the employment of MacDonald in violation of the open meeting law “because such employment termination issue was not identified in any notice for that meeting and the vote to terminate appeared to be a fait accompli.”

Weinberg suggests the vote appeared to have been discussed and deliberated by the selectmen outside of the meeting.

According to Weinberg’s letter, O’Rourke had earlier that same day discussed with Treasurer Janice Warner the final payroll check payout for MacDonald.

Weinberg argues this is further evidence that the termination decision had been made by the selectmen in “secret meetings and deliberations.”

Weinberg also cites another instance on Jan. 7, in which MacDonald believes the selectmen violated open meeting law.

On that day, O’Rourke and Selectman Rick Bean told MacDonald to place the name of a person on the agenda for the board meeting that night at which it would interview candidates for the highway superintendent because “the Board wanted to interview that person.”

Yet, MacDonald claims, there was no prior meeting of the selectmen or notices to reflect any discussion or deliberation related to the person filling the vacancy. “So the board decision to include that person in its Jan. 7. interviews had to have been made secretly and in violation of the open meeting law,” Weinberg states.

According to Weinberg, MacDonald felt pressured and compelled to submit his written resignation as a result of “political interference by the board into the selectmen process for a person to fill a vacancy in the position of highway superintendent — telling MacDonald to include a particular person, who failed to meet the established educational requirements for the position ... as well as the board’s apparent violation of the open meeting law.”

The board had interviewed four candidates — Christopher Radzuik, 41, of Erving; Walter Piekarski, 35, of Greenfield, Mark Bernier, 51, of Turners Falls and Ron Sweet, 54, of Conway.

The Personnel Committee recently recommended Bernier for the job, but preferred Sweet. The committee did not recommend Sweet for the job outright due to a conflict of interest with his son, who also works in the department.

“The board willfully and unjustifiably violated these statutory duties and requirements,” Weinberg writes, referring to open meeting law and conflict of interest law paperwork.

On behalf of MacDonald, Weinberg demands that the Jan. 14 vote to terminate MacDonald’s employment be rescinded. He also demands the selectmen release to the public the minutes of “the secret meetings held concerning the interview decision on Jan. 7., 2013 and the employment termination decision held on Jan. 14, 2013.”

The second letter concerns what MacDonald claims is an “unlawful and unjustified termination of his employment” and the town’s failure to pay him all owed compensation. MacDonald is demanding a payout of $14,301 that covers his last week regular pay period, three weeks of vacation time, 120 hours of sick time, 30 hours of personal time, 96 hours of compensatory time and four weeks for “violating contract” for the selectmen not accepting his 30-day notice. MacDonald claims his time was earned on Nov. 26, the first day of his employment.

There is a difference of opinion between the selectmen and MacDonald on what he is owed.

First off, MacDonald believes his hourly rate was based on a 30-hour work week, as specified by the Franklin County Retirement System’s new member enrollment form. The selectmen, however, calculated his hours based on a 37.5-hour work week.

MacDonald claims the selectmen unlawfully and improperly terminated his employment on Jan. 14 even though he was prepared to work until Feb. 7. MacDonald claims he is entitled to be paid his contractual salary through Feb. 7, not through Jan. 13. According to MacDonald’s calculations, this totals 120 hours of compensation owed and unpaid.

He also claims he accrued 90 hours of unused vacation time rather than 15.7 hours, which the selectmen paid him for. MacDonald states that during contract negotiations with Bean, MacDonald received three weeks of vacation on the day of his employment.

MacDonald also demands he be paid for 30 hours of sick time and 54 hours of compensatory time. He claims the town paid him only 4.2 hours of personal time and no compensatory time, leaving him with 25.8 hours of personal time and 30 hours of compensatory time unpaid.

O’Rourke, on the other hand, said the town had paid all it owes to MacDonald.

O’Rourke said he directed the town treasurer to print a final $3,642 check for MacDonald, which included his last two week regular pay period, four days of compensatory time for the four days he volunteered to work between Oct. 18 and his start date of Nov. 26 during his 30-day notice period for leaving his position as the town administrator for Chester and accrued vacation, sick and personal time for the 43 days he worked.

O’Rourke pointed out that MacDonald had also worked for Hatfield in April 2012 and resigned after working for the town less than a week. Hatfield selectmen’s Chairman Jan Joseph Adamski confirmed that MacDonald had only worked two weeks as the town’s administrative assistant, a 40-hour-per-week salaried job, before he resigned.

“He was here for about two weeks at most. I saw him twice. Once on a Saturday. He cited something about his contract. We thought he understood what the rate of pay was,” Adamski said.

Like the Conway selectmen, the Hatfield selectmen also believed MacDonald had given up his job in Chester.

In November, the selectmen came under scrutiny and criticism from other town boards and committees after the Planning Board discovered the selectmen quietly laying plans for the Rose property, the 11-acre riverfront site off Shelburne Falls Road .MacDonald had originally organized a site visit with the selectmen and two Westfield engineers to see the property.

Town of ChesterBoard of Selectmen

Water Commissioners

Minutes of Meeting – January 14, 2013

Members Present: Don Ellershaw, Frank Pero, JrMember Absent: John Baldasaro

Others Present: Ed MacDonald, Ed Meacham, Rene Senecal, Brent White, Erica Johnson, Gene Bishop

Meeting called to order at 6:00 p.m. by Mr. Ellershaw. Warrants and minutes were signed.

On a motion by Mr. Ellershaw and a second buy Mr. Pero, a Special Town Meeting was set for MondayJanuary 28, 2013 at 7:00 PM. Unanimous vote.

Captain Bemis Road – based on research completed by Mr. Senecal and Mr. MacDonald, it wasdetermined that Captain Bemis Road is not a Town Road. According to Mr. Senecal, it is not a viable roadand does not qualify for Chapter 90 funds. The cemetery located by Captain Bemis Road is not a publiccemetery.

John Regan’s license – motion to approve was made by Mr. Pero, seconded by Mr. Ellershaw. Unanimousvote.

Open Meeting Law Violation – Mr. Brackett of Brackett and Lucas responded back to the AttorneyGeneral.

White Engineering – Brent White gave a presentation regarding East River Road reconstruction. There areseveral issues that will need to be addressed. Among them are proper drainage, bank stabilization, polerelocation and possibly widen the road. Mr. White asked for an extension on his contract due to weather. The selectboard had no issue with this. Mr. Ellershaw made a motion to extend the original contract by aperiod of sixty days. Seconded by Mr. Pero. Unanimous vote.

Erica Johnson from Pioneer Valley Planning Commission made a presentation regarding grant money thatis being applied for Chester. While the dollar amounts are not firm, the projects are as follows: MapleStreet and Maple Avenue Roadway Improvements – approximately $507,389.Home Health Programs – approximately $47,000. Estimated budget of $662,889.Mr. Pero asked about funding for the library. Ms. Johnson said that they will look into this matter.On a motion by Mr. Ellershaw, Ms. Johnson was designated to act on behalf of the town of Chester, to beChester’s agent. Seconded by Mr. Pero. Unanimous vote.

On a motion by Mr. Pero, Mr. MacDonald was appointed Town’s Environmental Certifying Officer. Seconded

by Mr. Ellershaw. Unanimous vote.

In Mr. Baldasaro’s absence, the rule of necessity was invoked which allows Mr. Ellershaw to signdocuments on his behalf. Motion was made by Mr. Ellershaw. Seconded by Mr. Pero. Unanimous vote.

Open Meeting Law and Ethics Law – new forms and procedures have been instituted by the state. AllEmployees, whether elected or appointed need to complete the form, sign the last page and put it on filewith the Town Clerk’s office.

Letter of resignation from Mr. Boyer from the School Committee was accepted by the board.

Highway Department – Mr. Ellershaw asked Mr. Senecal for a doctor’s slip saying that he can work. Mr.Ellershaw thought that it was customary to turn one in after three days of being absent. Mr. Senecal saidthat he would get one. Mr. Senecal spoke about the highway department getting paid (for snow onweekends) on a special warrant so that the guys did not have to wait so long to get their money. Linda

St. Onge said that she was working on this issue.

Mr. Ellershaw asked under whose authority were the part time snow plow drivers hired. Mr. Senecal saidthat Mr. Baldasaro authorized it and they are to be paid out of emergency snow removal. Mr. Ellershawsaid that we should post jobs in the Country Journal and on the website.

On a motion made by Mr. Ellershaw and seconded by Mr. Pero, Jonathan Bendowki and Earl Stone werehired as temporary snow plow drivers. Unanimous vote.

Mr. Ellershaw said that for the most part, the storm was handled well. However, he did say that thehighway department did a lousy job in regards to the clean-up after the storm. The bankings were notpushed back, which created some difficulty in driving down those roads. He would like to seeimprovement in handling both aspects of the storm, during the storm itself and the clean-up which is justas important. Discussion as to when chains go on during a storm.

Mr. Ellershaw made a motion to have meetings once a week. Seconded by Mr. Pero. After discussing thisIssue, Mr. Ellershaw withdrew his motion. He said that this issue should be brought up before the fullboard.

Post on website that the town is looking for a person to serve on the School Committee.

George Miller Road Bridge – there will be a public hearing on February 12th at 7:00 PM.

Mr. Stone discussed river runoff and the culvert always being plugged, which backs up onto his land. Hewas advised to speak with the Chief to see if the culvert is being plugged purposefully.

Town Clerk – Cheryl Baldasaro – explained her budget request. Election fees should be increased.Salaries for both the Town Clerk and Assistant Clerk should be raised as well since they have not receiveda raise for several years. As far as salaries go, Ms. Baldasaro would have to approach Town Meeting since they set the salaries. As far as everything else, each department head will meet with the board to discuss their budget requests.

Ed Meacham discussed the Tiger Mower and a sickle mower. He asked what is being done to help both the town and electric light.

Mr. Ellershaw made a motion to adjourn at 8:15 PM. Mr. Pero seconded the motion. Unanimous vote.

Respectfully Submitted,Donna MacDonald

___________________________John Baldasaro, Chairman

____________________________Donald Ellershaw, Vice Chairman

___________________________Franklin Pero, Clerk

FEBRUARY 12, 2013