BOARD OF SELECTMEN
Natick Town Hall
September 21, 2009
4:00 p.m.
The meeting was called to order by the Chairman John Ciccariello at 4:00 p.m.
PRESENT: John Ciccariello, Joshua Ostroff, Kristine Van Amsterdam, Carol A. Gloff, John Connolly.
ALSO PRESENT: Martha L. White, Town Administrator; Donna Challis, Secretary
WARRANTS: Payroll warrants were signed by the Board of Selectmen on September 21, 2009 in the amount of $1,706,113.20. This figure was included in total warrants signed by the Board of Selectmen of $3,375,002.70.
ANNOUNCEMENTS
Mr. Ciccariello announced there would be an open house at the Senior Center on September 24 from 4:00-7:00 p.m.
Mr. Ostroff commended everyone who organized and attended Natick Days. Everyone’s support of the community was appreciated.
REVIEW OF TOWN MEETING WARRANT ARTICLES
Article 3 – Funding for Quinn Bill Payments
Ms. White noted that due to the state’s failure to fully fund its portion of the so-called “Quinn Bill” education incentive payments, the Town was not paying the full amount that police officers have historically received. A letter had been sent to the Police officers advising them in this regard and a copy was provided to the Board. Also provided was a spreadsheet detailing the full amount each officer would be receiving if the state were funding its share, the resulting reduction in their pay and the adjusted educational incentive payment.
To fully fund the educational incentive program would require a budgetary supplement of $200,689.75. This, however, may be an annualized number and if so the amount needed would be lower. She was waiting for confirmation from Finance Director Robert Palmer.
Ms. White recommended favorable action on the article. Despite the state’s failure to meet its obligation in this regard, she believed there was an obligation albeit a moral not legal one. It would allow the officers to continue the education incentive they have grown accustomed to. The funding source would be the tax levy as funds were expected to be released from the unemployment insurance account.
A letter dated September 9, 2009 had been sent to the Town’s legislators expressing concern with the state’s non-funding of the Quinn Bill. Ms. Gloff inquired if there had been any response from any of the legislators. Ms. White advised that there had not.
Ms. Gloff was of the understanding that this article was only to fund FY2010 and Ms. White confirmed that to be correct.
Asked for the proposed source of funds, Ms. White noted it would be the tax levy. She explained that when building the budget for FY2010 a line item called reserve for free cash was included and there was still an amount in that line item in the range of $200,000. Plus she still believed unemployment had been over-appropriated. There was sufficient capacity within the tax levy.
If the Board were to recommend favorable action, Ms. Gloff questioned if it was only postponing the inevitable if the state didn’t come up with its share in future years. Ms. White responded that there were a couple of troublesome forecasts that emerge. The administration was already thinking about the close out of free cash for FY10 and this was a squeeze that would have an impact on FY10 free cash. There were some strains on the Police Department budget, this being one of the most significant. If the State continues not to meet its obligation under Quinn, it will have an impact on the overall Town budget. The FLSA obligation will increase the budget. The Police Department balanced their budget this year by not budgeting the salary of an officer who was deployed for the full year, but
the officer was expected to return the following year. Those three things were being watched carefully in looking toward the challenges of Fiscal 2011.
Mr. Ostroff had a question of precedent. To what extent was the Town obligated to fund Quinn in the future? Was that something that needs to be addressed in a Memorandum of Understanding should this article go forward? Ms. White noted that the article on the warrant dealt just with Fiscal 2010. Ms. Van Amsterdam anticipated such a question being asked on Town Meeting floor and asked if Ms. White was prepared to respond. Ms. White was of the opinion that it was a matter of collective bargaining.
Mr. Connolly inquired if former Chief Mannix’s salary was removed from the Police budget as well as the Sergeant’s who was deployed. Ms. White advised that it was not. Chief Mannix’s salary was still in place and largely consumed with the Interim Chief’s salary. The net effect was a Lieutenant’s salary not being used and the Lieutenant’s salary not being used will enable the absorption of the remaining year’s cost for the FLSA pay.
Mr. Connolly then inquired if the Police Department had turned back any money and Ms. White’s reply was, “significant”. Asked if that could be used to fund the Quinn, Ms. White advised that it could not be directly used but there would be free cash that would be available.
Mr. Connolly felt that the Police Department was blindsided by this (state not funding their share of the Quinn bill) and he hoped everyone appreciated the letter sent to the Legislators.
President of the Patrolman’s Union, Kevin Delahanty agreed with Mr. Connolly that they were blindsided by this. Nobody thought the Legislature would do this. Having gone over the budget, Officer Delahanty said he saw that for Fiscal 2010 the Quinn was fully funded by the Spring Town Meeting and he didn’t understand why the Board of Selectmen chose to cut the Quinn rather than continuing to pay as budgeted instead of cutting it now and causing a loss of $400-$500 in salary a month. He didn’t think anybody else would take a cut and not be upset and he didn’t believe it was necessary. He believed the money was in the budget. While he understood the Town wouldn’t be reimbursed, it was funded for Fiscal 2010 so why was it going back to Town Meeting and asking them to support
something they already voted.
Ms. White explained that what Town Meeting voted was not the full appropriation. Officer Delahanty was looking at what was proposed.
Officer Delahanty responded that he got the numbers from the Town’s web site, but Ms. White said she checked and the appropriation requested was changed late in the process. It was not funded at the 100% level. Officer Delahanty countered that these numbers were on the Town’s web site and gave the pluses and minuses for FY09 and FY10. He believed the cuts Ms. White was talking about were made in the budget. Ms. White reiterated that the review of the records indicates the Quinn wasn’t fully funded. If this was not the correct number on line, Officer Delahanty inquired as to what was the correct number. The only number Ms. White had with her was the shortfall.
Officer Delahanty explained that his question was what was appropriated by Town Meeting. If it was already appropriated why was it going back to Town Meeting? He didn’t think the budget could be cut without going back to Town Meeting.
Ms. White responded that a budget couldn’t be supplemented (without going back to Town Meeting), but could be reduced. The administration had checked and re-checked the Town Meeting records and their (administration’s) position was that this additional appropriation was needed to fully fund the Quinn.
Mr. Ciccariello offered to get Officer Delahanty the correct budget number.
Officer Delahanty continued that former Chief Mannix’s salary was $159,000 which was not being paid. While he didn’t know Chief Mabardy’s increase, he had been told it wasn’t significant and would like those numbers as well. The department was only staffed at 37 patrolmen but funded for 38 which left an appropriation of $39,000 in salaries. There was excess money in the budget this year and he thought there was money to fund the Quinn Bill. When the Town accepted the Quinn Bill, the Town agreed to pay the full payment and get reimbursed. Wellesley, Framingham, Ashland were fully funding Quinn without an appropriation from Town Meeting. He didn’t know when the money was cut because he was seeing it on the web site up until August 19.
Officer Delahanty noted that he had a copy of a letter from the Patrolmen’s Association attorney and added that he thought the Town was premature in cutting the Quinn. It was a lot of money out of the salary of an officer and it was something they depended on to pay their bills. To make up the money more time had to be spent away from their families.
Officer Delahanty read the letter from Attorney Alan MacDonald into the record:
Addressed to Atty. Michael Lehane
Murphy, Hesse, Toomey and Lehane,LLP
Dated: August 14, 2009
Re: Town of Natick
And Natick Patrol Officers Association
The Natick Police Patrol Association has asked me to reply on its behalf to a letter dated August 12, 2009 from Town Administrator Martha White to Kevin Delahanty regarding Quinn Bill payments. In that letter Ms. White announced the town’s intention to make a pro-rata reduction in payments to officers effective August 19, 2009 in response to an anticipated shortfall in reimbursement from the Commonwealth of Massachusetts for its share of Quinn Bill payments. I write to request that the Town not make the announced reduction for the following reasons.
In the first instance, the Commonwealth has not yet reimbursed the Town for Quinn Bill benefits for the most recent year. Thus, it would be premature for the Town to presently reduce those benefits.
Moreover, since the Town has accepted Chapter 41, Section 108L (the Quinn Bill) as a local option law, a serious legal question exists as to the enforceability of any contract term, including that section of Attachemnt B to the Association’s collective bargaining agreement, that requires anything but full payment by the Town of the benefits set out in that law. That is so because the Quinn Bill is not listed in Chapter 150E, Section 7(d). Although the parties may commit contractually to the benefits contained in the Quinn Bill, and enforce that commitment through arbitration, they may only do so in a manner consistent with that law. (See Rooney v. Town of Yarmouth, 410 Mass. 485, 493, (1991). Because the law does not condition the officers’ right to the full benefits of the Quinn
Bill upon full reimbursement by the Commonwealth to the Town, it follows that the parties themselves may not so condition such receipt.
Chapter 149, Section 148-150 of the General Laws further complicates the unilateral reduction of Quinn benefits announced by the Town. Those provisions require the payment of wages to employees within six days of the date such payments are due, and mandate triple damages for nonpayment. In my opinion, educational incentive benefits under the Quinn Bill constitute wages within the meaning of Section 148, nonpayment of which would leave the Town liable to each officer for three times the amounts not paid under Section 150.
In light of the legal questions raised by the Town’s proposed reductions in pay, it would seem prudent to forego such action at this time. That forbearance will allow the Association to forbear as well from any litigation over these issues. One of the reasons that the Association has asked to open contract negotiations for a successor contract earlier than usual is to allow discussion and possible resolution of educational incentive issues and other important issues now facing the Town and the Association regarding police compensation. The Association looks forward to a constructive discussion and prompt resolution of these issues during these impending negotiations so that its members may continue to provide the outstanding public service that the citizens of Natick deserve.
Please feel free to contact me with any questions or concerns.
Thank you
Very truly yours,
Alan J. McDonald
Cc:Kevin Delahanty, President, NPOA
Sergeant Robert Dunlop, President of the Superior Officers Union, noted that they were affiliated with the NEPBA and that legal action had been started against the Town. He understood the budget and knew the Board was supporting the Police for FY10. His concern was the future and he was sure it would be before the bargaining table. He did not want to take action against the Town.
Mr. Ostroff was of the understanding that the Legislature’s failure to fund pertained to the current fiscal year and not reimbursement for past expenses. Ms. White advised that the Town’s reimbursement for FY10 was dramatically reduced.
Mr. Ciccariello asked if the FY09 reimbursements had been received, and Ms. White responded that by and large the amount received in FY09 was in the ballpark of what it should have been, but she couldn’t say it was 100%.
To Officer Delahanty’s comment of currently being staffed at 37 not 38, Mr. Ciccariello questioned if the position had been vacant for some time. Officer Delahanty advised that it was a vacant position that was meant to be filled but left open and the salary used. The Department hadn’t been staffed at 38 for some time.
It seemed odd to Mr. Ciccariello that we kept funding something that wasn’t going to be filled and asked the Town Administrator to check.
Mr. Connolly inquired if anybody had responded to Attorney MacDonald’s letter. Ms. White didn’t think there had been a response directly to Attorney MacDonald, but a letter had gone to the two union presidents.
Mr. Connolly then asked if either union president had sent a letter to the Legislators who actually cut the budget. Officer Delahanty advised that not only did they call the Legislators they met with them and tried to make the point of the impact of this. They did everything they could possibly do with the Legislators to fully fund the Quinn Bill.
Mr. Connolly commented that the legislators were the bad guys and Officer Delahanty said he understood, but thought the Board had made an error in cutting Quinn payments when the funding was in the budget.
Sergeant Dunlop noted there was a lobbyist for each local and their biggest push was this. He was told Quinn was never fully funded at 100% and there always had to be supplement budgets. He understood the finances but that was another reason the union considered it a slap in the face to have it prematurely taken away.
On a motion by Ms. Gloff, seconded by Ms. Van Amsterdam, the Board unanimously voted to recommend favorable action on Article 3.
Article 4 – FLSA Settlement
Ms. White informed the Board that the numbers for this article were not finalized. There were three elements. The back pay and damages was a known number of $646,565.83, but the two that were not known were the back pay due between the court order and the Town began paying and the plaintiff’s attorney’s fees. The administration was still working on the calculations for the back pay due and looking to hear from the plaintiff’s attorney on his costs and fees. It was her understanding that Town Counsel received information from the plaintiff’s attorney on Friday.
The FLSA payments going forward she believed could be afforded because of the savings alluded to in other areas. She didn’t believe there was a need to supplement the Police budget going forward.
Mr. Ciccariello inquired as to when the additional information would be available and Ms. White responded that the Board would be hearing more about it this evening but there wouldn’t be definitive information. She assured the Board it not for a lack of trying.
Mr. Connolly assumed there would be a tremendous amount of questions at Town Meeting and was there anybody that could answer them. Mr. Ciccariello advised that Town Counsel was coming to executive session that night at 6:00 p.m. and a full presentation would be made to Town Meeting.
Officer Delahanty apologized to the Townspeople for having the lawsuit get as far as it did. It was never the Police’s intention to get into a five year lawsuit over something that was the law. The union approached the previous administration and asked them to comply with the federal law and they (police) would not file a lawsuit or seek back wages. It fell on deaf ears and forced the union to go with the charge. They (police union) weren’t happy with the expenditures and lawyer fees and it was not their intention to get this to go to court. It was an issue of the correct payment of overtime. Again Officer Delahanty apologized for getting into litigation that last five years but they were forced into doing it.
Mr. Ostroff inquired as to source of funding, and Ms. White responded that the Board of Assessors had agreed to release $500,000 in Overlay Reserve. The balance or at least the bulk of the balance would likely be from the Stabilization Fund. She was trying to minimize the impact on the Stabilization Fund by using Overlay Reserve.
Article 38 – Home Rule Petition: Removal of Police Chief Position from Civil Service
At Ms. Van Amsterdam’s request a letter from the Natick Superior Officers Union was read into the record. She thought it was a passionate plea for the Board to consider the most qualified candidates.
To the Board of Selectmen
Dated: August 19, 2009
The members of the Superior Officers Union, NEPBA 082, of the Natick Police Department, wish to relay to you some of our concerns, in regards to the suggestion that the Chief’s position be removed from Civil Service status.
First and foremost, we wish to relay our confidence n the candidates that we have here in our membership. The Natick Police Department has qualified candidates who have worked their way up the ranks of this police department, serving the residents and business owners of this great town. They know the community and its particular wants and needs. They have a vested interest in the town of Natick and have put in the years of hard work necessary to reach the point in which they have made themselves viable candidates. They have proven their commitment to the town, not just a position within the police department. They know the men and women of the Natick Police Department and what we need to continue to provide the services we feel are second to none. We feel that these candidates
will be able to prove to you that they are as qualified a candidate as one could find, no matter the search conducted.
We also have concerns relative to fairness and impartiality, if the position were to be opened up to any interested party. How can we be assured that politics won’t be the criteria used to decide who will be leading us? Civil Service was implemented in part, to safeguard communities and the candidates from the suggestion that politics or other improprieties played a role in the hiring process.
This also brings up the issue of cost effectiveness. Would the town be in a position, given the current financial situation, to fairly test and evaluate all qualified candidates? That could prove to be a very expensive and time consuming undertaking. Again, we feel this would be a waste of taxpayer resources, given our position that the candidates we have in the Natick Police Department are the best for the job.
We, the men and woman of the Natick Police Department Superior Officers Union, appreciate your consideration of our opinion in this matter. Whatever decision that you make, please be mindful that the effects will be felt most by us and for many years to come. We also take exception to you feeling you need to look outside the department, when all of you have stated publicly and on record, how impressed you were with the current candidates after the first process to establish an acting chief. What has changed to lessen your confidence in the current command staff? If any of you wish to speak with any of our members to discuss this issue, please feel free to do so, at any time.
NEOBA 082 Superior Officers
Following the reading of the letter Ms. Van Amsterdam continued that for her the statements in the letter spoke to the process and she shared the concern that the process be open for the broadest pool of candidates. The process should be fair with no blocking of the ranks. It was incumbent upon the Board to ensure that the best candidates can and will apply, that we are able to gather the most information on these candidates and that the Board is able to utilize all such information to evaluate the candidates and that we be able to develop retention incentives, (5-year contracts, performance goals, periodic performance evaluations) that were mutually agreeable and beneficial to the Chief of Police and the Town of Natick.
When asked why relook at the hiring process now? What has changed? The obvious answer is that the Board of Selectmen had to fill the vacancy left by the retirement of Chief Mannix and the vacancy presents an opportunity to review the civil service promotional process. It provides an opportunity to reflect on the following:
1) Recent experience with making a provisional promotion for police chief under civil service; 2) Recent experience with the fire chief promotional process under civil service; 3) past efforts by the Town (BOS, TA, DTA, Personnel Board, Fincom, and Town Meeting) to move to a non-civil service selection process for the public safety officers (police and fire); and finally, 4) the institutional knowledge of the current members of this Board (experience/participation in hiring for civil service positions and non-civil service positions (TA, Comptroller, Supt.).
In order to both elevate the discussion of these two warrant articles from the emotional fervor and assess the realities of the civil service promotional process let us look at the following documents; police chief job description (prepared by Personnel Board), Police Chief Civil Service Selection Process Options (prepared by former Town Personnel Director Betty Dennis) and Warrant Articles 38 and 39. In looking at these documents, it is important to identify what we know as fact (civil service rules and regulations for promotional options, events that occurred and are not part of town gossip or lore.)
Written Exam Departmental Promotional option: BOS institutional memory is relevant and experience with fire chief selection process. Candidate pool is limited to the Civil Service defined Minimum Entrance Requirements – open to rank of personnel just below chief (police lieutenant)- permanent in eligible position title for minimum one year). Candidates are ranked by results of single exam score. Selection Bypass reasons are onerous and very often subject to legal challenge in court. Open Competitive Written Exam: Anyone who meets the minimum Entrance Requirements of experience/education may participate. Candidates are ranked by results of single exam score. Selection Bypass reasons are onerous and very often subject to legal challenge.
Limitations/Deficits: heavy emphasis on single test score, litigation prone bypass process. There is no information on candidate’s strengths in areas such as leadership, decision-making, interpersonal skills, planning and administration. Interesting to note that the Human Resource Division (HRD) stated in its announcement of the Regional Assessment Center Initiative “ These aspects of individual candidates cannot be measured using the multiple-choice written exam. As these qualities are important to job performance, especially as the tested rank increases up to Chief, the use of Assessment Centers in public safety is growing and gaining respect within Massachusetts.”
Assessment Center (Delegated or HRD Regional AC) option: BOS recent experience with fire chief selection process is relevant. Candidate pool is defined by the same Civil Service Minimum Entrance Requirements just discussed. Assessment Centers can be departmental Promotional or open competitive.
Typical competencies tested:
Leadership; planning & administration (Planning and Organization); communication (combined oral written); oral communication; written communication; problem analysis; reasoning; decision-making; human relations/interpersonal skills; conflict management; stress tolerance; customer service (defined as a problem solving approach).
The goal of the assessment center is to test for these competencies.
Limitations/Deficits: (Town realized these first hand)
No broad pool of candidates in Departmental Promotional assessment center (rank below chief minimum four candidates): look at minimum entrance requirements. Town learned firsthand the political reality of departmental officers of one rank “blocking” the officers in the rank below and it was all done while adhering to the rules and regulations of civil service. Four lieutenants signed up to participate in the assessment center (in accordance with civil service rules there was a sufficient number of candidates of that rank) but only three showed up to participate. In this instance not even the civil service rules could (and I quote from the Superior Officer’s letter) “safeguard communities and the candidates from the suggestion that politics or other improprieties played a role in the
hiring process.”
Open Competitive assessment center, while providing a broad pool of candidates is cost prohibitive because of the civil service rule that all who meet the Minimum Requirement must be given the opportunity to participate in the AC. The Appointing Authority (this Board) has no discretion via criteria to identify a subset of this broader pool to then participate in the Assessment Center.
Another deficit of the Civil Service Assessment (Departmental or Open Competitive) is the removal of the Appointing Authority or a Selection Committee of the Town from the evaluative process. Under civil service, the results of any Assessment Center are quantified in a single score. Neither the outside consultants, nor the assessors, nor the observers can share their observations with the Appointing Authority. Case in point, during the Fire Chief assessment center, the Town Administrator and Personnel Director were present, but these professionals could not share their observations with the BOS. The assessment center is videotaped to ensure an accurate record of the proceedings, and to provide an audit trail should a candidate believe they were poorly assess or discriminated against. NOTE however, that when this Board asked HRD
for permission to review the videotapes, the then Personnel Director provided us with the following quote from HRD – “ The applicants performances captured on the Assessment Center tapes are confidential information, and it would be inappropriate for the Selectmen to view them.”
So under civil service, the assessment center still results in the selection of a chief based on a single score. While many competencies are tested and evaluated during the AC, the Appointing Authority is not considered the “appropriate body” to either view the assessment center videotapes or read the detailed evaluations. Civil Service rules provide for the “blocking” of information on candidates at a detailed level. All the reasons for using an assessment center are negated by the fact that the Appointing Authority can’t use this information in its evaluation of
candidates. This Board experienced this first hand with the Fire Chief Selection Process.
One is left with the question is there a process that attracts the broadest pool of MOST QUALIFIED candidates (including those Most Qualified candidates from the Natick Police Department referenced in the Superior Officer’s letter), that is cost effective for the town, and provides the Appointing Authority with the most information to evaluate among and between candidates. Please see Warrant Article 39.
In brief, this warrant article represents the culmination of work done by numerous professionals, elected and appointed officials, employees and volunteers in the town over many years (past and present Town Administrators, Deputy Town Administrators, Board of Selectmen members, Personnel Board members, Fincom members, Personnel Director, Chiefs of Departments, and of course the employees. All of these individuals have collectively worked toward ensuring that the municipal work environment in Natick is physically safe, free from political harassment, that the work is rewarding and that work is rewarded. Moreover, many of these individuals have worked toward safeguarding the employment opportunities of those working for the Town of Natick through the adherence to basic legal rights afforded
through state and federal laws. Such would be the case for a non-civil service police chief. Movement of the Police Chief position from civil service, would afford this position similar protections (a contract) to those offered to the town’s most influential leadership positions, namely the Town Administrator and the Superintendent of Schools. An employment contract could set forth additional rights and remedies beyond state and federal law.
The Selection Process as laid out in Warrant Article is not specific with regard to Minimum Entrance Requirements (see the job description for the police chief). Warrant article refers to a job description. Rather it is to the job description that would address minimum standards of competence or minimum entrance requirements. (These minimum standards would be periodically updated through a job analysis process.) There is no blocking of candidates who wish to apply. Eligibility would not be limited to those working in the next lower position title in the department. These entrance requirements would be posted in appropriate professional journals and by other means.
The Warrant Article meticulously describes the make-up of the Screening Committee: Nine voting members and one voting member. The Screening committee members are responsible for soliciting candidates, please see details. The Screening Committee with the help of the non-voting member (Personnel Director) will determine which candidates are put through the Assessment Center (benefits of an assessment center have already been discussed). Personnel Director establishes the job requirements and job description (advisory capacity). Unlike a civil service open competitive assessment center where all applicants must be able to participate in the assessment center. Screening Committee would pass on at least three qualified candidates to the Board of Selectmen for interviews. Candidate appointed to police chief position would serve
for a term of up to five years (CONTRACT would be negotiated). Contract would include expectations, performance goals and processes for addressing performance issues. This would be an employment contract like many others between towns and chiefs in MA, with regular performance evaluations and periodic renewal. The Town needs the flexibility to develop realistic hiring standards for the position of police chief, to publicize them, to evaluate based upon them and to ensure accountability.
Why now? Why change? Final reflections/ arguments for change: Why is the police chief position, a leadership position similar to that of Town Administrator and Superintendent of Schools viewed so differently. Her response would be that the duties are unique to the office but more importantly the position. Many of those duties require making decisions that could have life and death implications. That is the crux of the issue for many people involved in this decision. People are emotional about life and death issues and are therefore much more reluctant to change the way we hire a police chief. Under the watchful eye of the police chief we will be kept safe. It is our job as policy makers, therefore, to make certain that the process for selecting the next police chief allows for the inclusion, interpretation
and evaluation of those human qualities so essential to the successful tenure of a police chief. We can’t do that adequately under civil service. Civil service or any process that focuses solely on a single score, allows for no such interpretation. The policy makers of the town and the Screening Committee as presented in the warrant article need to be able to interpret the demonstrated decision making capacity of the candidate, the demonstrated administrative style of the candidate, the demonstrated leadership ability of the candidate and finally the demonstrated capacity of the candidate to effectively engage departmental personnel, those involved in municipal government in Natick (employed, elected or appointed) and members of the general public.
It is responsible, reasonable and safe to remove the police chief position from civil service. The time is now.
Mr. Connolly appreciated Ms. Van Amsterdam’s efforts and agreed that Civil Service had its faults like any process, but over the last 100 years it has served Natick well. To him the Police Chief was a different environment than the analogy between a Town Administrator and Superintendent. The lieutenants that came before the Board were extremely knowledgeable and their resumes were outstanding. Everyone across the street (Police Department) was a product of Civil Service. If the position were removed from Civil Service, it was his understanding that anyone could go after it. He (Mr. Connolly) enjoyed the coming up through the ranks.
Mr. Connolly continued the chief in Ashland was non Civil Service and he left and went to another community. The alliance was more to a paycheck than community or perhaps a stepping stone to other things. The possibility exists that if three members of the Board didn’t like the chief he/she could be gone just like that. Civil Service gave the chief the strength of not having to rely on his contract being up for negotiation in two years and it gave an outside support mechanism. The political aspect was the gist of his argument.
Kevin Delahanty, President of the Patrolmen Officers union, told the Board that he had worked for several towns and had seen it work both ways. Ms. Van Amsterdam made a great presentation and it all sounds great but he had worked for both. When he worked for Winthrop there was non Civil Service and there was no stability. His brother just got the job of Chief in Winthrop and he had a big job. The department has become fractured. If the Board of Selectmen don’t like him, he could be gone in three years and that was a huge part of this whole issue.
Officer Delahanty continued that he thought the Board of Selectmen had too much control over the Police Department. They (police) were all Type A personalities and it was a tough group to manage at times. It was the nature of the job and to have a chief holding to the Board of Selectmen and what was right for everybody sometimes conflicts. It took a special person. Former Chiefs Mannix and Arena were appreciated.
As President of the Patrolmen’s Union, Officer Delahanty stated that they fully support the lieutenants who were applying for the job and would support a state-wide exam and keeping it in Civil Service. It (Civil Service) did a great job in the past. He noted that he moved to this town because he realized how great a town it was. It was a good department but there had to be somebody who was interested in the community and had a broad understanding of what the community was about. He pleaded with the Board not to take it out of Civil Service as he believed it would be making a big mistake.
Regarding the comments about Winthrop, Ms. Gloff inquired as to why there had been turnover. Officer Delahanty responded that it was a very political town and once the Board of Selectmen got a grasp of the Police Department they wanted to control whatever happened. One chief wanted to do what was right, but the Board of Selectmen wanted him to do it differently. He refused and lost his job because he wouldn’t play along.
In follow up Ms. Gloff asked if that had been the situation with others and Officer Delahanty replied that the current chief that got “laid off” because they didn’t like the way he was acting. Politics enter the department and it becomes ineffective.
Sergeant Robert Dunlop, President of the Superior Officers Union, noted that 15 members of the Local, excluding Provisional Chief Mabardy, voted to keep the job in Civil Service. They were afraid of the political reasons and thought there was a large pool of available candidates. The Board had the duty to interview the top three candidates and if the Board wasn’t satisfied with those three, the Board could reject. He didn’t understand why this fight was being picked again.
Chief Mannix was their boss for 20 years and he (Chief Mannix) was a leader for the Town first. He wasn’t the best friend to the Union, but he did the best for the community. Sergeant Dunlop thought the pool was there. There were 13 Sergeants and he felt one could serve as chief and that was because of the budgets. Politics enter into 3-5 year contracts. Newton took the position out of Civil Service, had three unsuccessful chiefs, and went back. He talked to Civil Service and they said communities came and went and there was no trend. In 2005 the then Personnel Director Elizabeth Dennis told everyone that communities were leaving Civil Service but that was not correct.
Mr. Ostroff felt that to quote from the letter sent from the union (referring to Ms. Van Amsterdam’s presentation) was unfair. These were men and women that were very passionate about their job and to suggest something was not appropriate because it may be construed as emotion was unfair. When the interim chief was appointed one argument was stability and he didn’t think that was something to look for in an interim but rather in the long run. He understood the criticism of Civil Service and lack of transparency and the validity of criteria but he would be concerned about a process that was so open to subjectivity leaving the politicization of the chief. He worried about the process. Appointing a Police Chief, Fire Chief, and Town Administrator was the most important (work of the Board).
Mr. Ostroff continued that the Board was just beginning the important process of replacing Chief Mannix and this (removal of position from Civil Service) comes in mid-way through. He felt the Board needed to show the leadership for which people elected them and manage with the rules. If they couldn’t do that why should people trust them with a whole new system. The Town could end up with a Civil Service Chief that it was not happy with and the reality was he was willing to run that risk. There was an able pool of candidates and he would like to see the Board do the job it was elected to do and work in the system. He felt the Board needed to do its best with the resources.
In 2005 he thought the main motivation was the Fire Chief and the feeling that the Board didn’t do its best. Having reviewed the minutes and spoken with people, maybe the Board did the best they could but didn’t make use of all that was available to them. The Board of Selectmen needs to make an earnest effort to fill this position within the limits of the law and until that was done he was reluctant to support an untested measure.
Mr. Ciccariello stated that he had mixed emotions. He was the only Board member that had been through the process of hiring a chief twice. The first time they didn’t know a lot about the process and didn’t get a lot of explanation and wasn’t aware of what other things they could do. When he was involved in the first chief, there were only two candidates. The prior Board agreed to do an in-house search with the understanding all eligible candidates would take an in-house exam. Not all took the test and there were only two candidates on the list. The Board could have rejected the list but there was a commitment of the past Board and he (Mr. Ciccariello) got stuck going through the Civil Service process at hearing.
Mr. Ciccariello thought Civil Service had its flaws and there was a need for Civil Service to recognize it was 2010 and changes had to be made. One of the flaws was the test scores. You wanted the best chief you could get and he had concerns whether the Town could afford an open competitive exam. He thought he had made it very clear that he was comfortable with the four (lieutenants) and felt they were all qualified, but there was nothing that precludes the Board from opening it up to other individuals in other departments.
It was a difficult situation. Having learned the hard way, it was difficult to reject the top scores. He thought Mr. Ostroff had it right that the Board probably didn’t have enough information about the process and experience in hiring a police or fire chief. He didn’t want to run the Natick Police Department and didn’t think the Board of Selectmen should interfere with how the Police and Fire Departments were run. He wanted the best qualified candidate.
In 2005 he listened to the pros and cons (of taking the chief’s positions out of Civil Service) and would go through the same process this time. Natick in its history has been very fortunate with its previous chiefs particularly Fire Chief Richard Fredette and Police Chief Dennis Mannix. They made a commitment to the community and the community made a commitment to them. At this time he (Mr. Ciccariello) would not support the article.
Mr. Ostroff stated that he would support referral.
Given that it was the Board’s responsibility to select a new chief, Ms. Gloff expected that Town Meeting would be looking to have some sort of recommendation on the articles. She too had mixed emotions about this – some concerns were centered around the standardized exam and the issues raised that the Board of Selectmen get the scores and that was it. Some people do well on standardized exams, but it didn’t mean they were the best person. She leaned toward the assessment center and recognized the limitations.
A motion was made by Ms. Gloff to recommend referral of Article 38 to the Board of Selectmen and Town Administrator. Seconded by Mr. Connolly. The motion passed on a 4-1-0 vote. Mr. Ciccariello, Mr. Ostroff, Ms. Gloff, Mr. Connolly voted in favor of the motion. Ms. Van Amsterdam was opposed.
Ms. Gloff then moved to recommend referral of Article 39 to the Board of Selectmen and Town Administrator. Seconded by Mr. Connolly. The motion passed on a 4-1-0 vote. Mr. Ciccariello, Mr. Ostroff, Ms. Gloff, Mr. Connolly voted in favor of the motion. Ms. Van Amsterdam was opposed.
Article 56 – Amend By-Laws Article 91: Collective Bargaining
As Chair of the Charter & By-Law Review Committee, Ms. Gloff explained that when the CBRC was reviewing the by-laws Labor Counsel said this was redundant to the MGL and recommended repeal. She understood there were now some concerns.
Ms. White advised that she heard from some union representatives when they observed that Article 91 was being proposed for repeal. They understood that it effectively mirrored state law so there would be no affect but there was some concern with union members that the By-Law while it wasn’t word-for-word with state law it virtually had the same affect. She would recommend referral back to CBRC. Appeal didn’t accomplish anything and was creating some concern.
As one member of the CBRC and the Chair, Ms. Gloff thought it made sense to refer the article back to the CBRC. In her personal opinion, the CBRC would not choose to bring it back to Spring Town Meeting.
On a motion by Mr. Connolly, seconded by Ms. Van Amsterdam, the Board unanimously voted to recommend referral of Article 56 to the Charter & By-Law Review Committee.
President of the Patrolmen’s Union, Kevin Delahanty said he was befuddled by the article. The union had some concerns with the flagmen issue, with the street opening policy, and then Article 56 which they thought was one step closer to allowing the Board of Selectmen to pass a by-law eliminating details. Why touch it if it mirrored the state law. Many of the unions were concerned and being told Labor Counsel was pushing it really concerned them.
President of the Superior Officers Union, Sergeant Robert Dunlop felt their concerns were duly noted and thanked the Board for voting referral. As long as he was the union president and a member of the Police Department he was available to discuss with the Board how to get the Legislature to change Civil Service.
DPW: DEP WATER MANAGEMENT PERMIT
DPW Director Charles Sisitsky referred to the September 17, 2009 status report regarding DEP’s efforts to issue a draft Water Management Act Permit. The draft will be out by the end of the year with the final permit issued early 2010. There were four new requirements:
65 gallon/day/capita
A limit of 10% in unaccounted for water
A proposed 3.71 mgd maximum daily water that can be pumped
The requirement for a water ban every summer
- Blanket May 1-September 30 with no outdoor watering 9:00 a.m.-5:00 p.m.
- Tied to the Charles River flow. If it fell below a certain level, there would be an immediate ban and then it can be lifted when the flow returned.
Mr. Sisitsky advised that many communities were taking DEP to court. Natick requested a meeting with DEP to discuss the conditions and one was scheduled for mid to late October. They (DPW) weren’t hopeful DEP would change the restrictions but felt there was an obligation to try to get them to change. They have been crunching a lot of numbers and in two of the past six years the Town has exceeded the 10% and 65 gpd. DEP was proposing a 3.71 mpg average and over the past years, Natick has exceeded that once. The numbers were related to weather. In drier summers people use more water.
The concern was that DEP was imposing some very strict standards and he believed the Town should challenge that. After the meeting in October, the DPW would be happy to report back to the Board on where it stood.
Mr. Sisitsky was asked if the 3.71 mgd would change with an increase in property and he advised that an increase in population would increase the number. However, the total number would potentially have an impact on future growth. If there was a proposal that would be a big use of water, the Town would have to go back to DEP and ask for relief.
If the Town were faced with an unfriendly 40B, Mr. Ostroff asked if this could be grounds for denial. Mr. Sisitsky’s response was, “no”.
Mr. Ostroff then asked about unaccounted for water use and Mr. Sisitsky explained that it could be from leaks, blow offs, or flushing of hydrants. They were trying to put a number on each to keep it under 10% and had hired a leak detection company to go through the Town. That has been successful.
Mr. Ciccariello referred to comments in DEP’s Order to Complete that Natick didn’t have a drought management plan and asked if that were true.
Greg Eldridge of Haley & Ward, the Town’s consultant, advised that those comments were from the Charles River Watershed. DEP reviewed and found that Natick was doing what it was required to do although the Town could do more. Leak detection was the main part of the program, and if those efforts were done before the permit came out and it was still over the limit, DEP would come back to the Board and see what could be done to get it down.
Asked if Natick had exceeded the per capita, Mr. Eldridge advised that the Town had on one or two occasions. It was a difficult number to reach with families but the major impact was watering. This year he guessed that the Town would not exceed the 65.
Mr. Ciccariello remembered there being water bans on occasion but couldn’t recall doing one in the last two years. Jack Perodeau, Water & Sewer Supervisor thought there probably hadn’t been one in five years. When asked if he thought there should be one in place, Mr. Perodeau responded that he didn’t. It would be a matter of choice. They would meet with DEP to argue the point, but they were now saying the Town had to have a water ban.
If only allowed 3.71 mgd, Mr. Ciccariello questioned how to keep the operation moving. Mr. Sisitsky noted that you wouldn’t know if the 3.71 was exceeded until the end of the year. If the average daily limit was exceeded it had to be reported to DEP and DEP would probably impose a more strict water ban.
Mr. Ciccariello asked if DEP could impose fines, but Mr. Sisitsky advised that that wasn’t known as of yet. Mr. Ciccariello commented on the restriction to revenue and Mr. Sisitsky agreed, adding that the Town had spent a lot of money on the treatment plant and told people that with the upgrade there would be no need for a water ban.
Ms. Van Amsterdam inquired as to how municipal use came into play and was told by Mr. Sisitsky that it was part of the total daily use limit but not the per capita. Ms. Van Amsterdam then asked about the golf course and Mr. Sisitsky advised that it was a commercial use under the total daily use.
Ms. Van Amsterdam asked Mr. Sisitsky if there had been any discussion about watering other than residential. Mr. Sisitsky advised that there had been talk about non-essential use and talk about commercial use like nurseries being essential use. Whether that translates to the golf course he didn’t know.
Mr. Ostroff inquired if there was a mandate to use the census data for per capital. Mr. Sisitsky responded that the Town has been using the federal census because it was slightly higher and there hadn’t been any challenges.
Ms. White called attention to the letter in the packet from Mr. Sisitsky announcing his retirement.
EXECUTIVE SESSION
Mr. Ostroff, seconded by Mr. Connolly, moved to enter into executive session to discuss matters pertaining to collective bargaining, litigation, and real property. By roll call vote the motion passed on a 5-0-0 vote. At 6:10 p.m. the Board entered into executive session after announcing that the meeting would return to open session.
The open session was reconvened at 7:10 p.m.
INTERVIEW FOR APPOINTMENT OF ASSOCIATE MEMBER OF THE ZONING BOAD OF APPEALS
Ms. Coughlin told the Board that she had been the Director of Research for a non-profit and a Director of Research at Harvard. She had a strong legal background, having worked as a litigation paralegal for ten years prior to her academic and research career. She had a commitment to public service. Currently she was a Town Meeting member and wanted to be more involved. Originally she responded to the posting for a Tax Classification Study Committee, but that Committee did not go forward.
Mr. Ostroff inquired as to Ms. Coughlin’s interpretation of the role of the ZBA and how she would be suited to serve.
In response Ms. Coughlin noted that she had a solid background as a paralegal and lived through the process of a neighbor that went through an appeal last year. Having done some research her understanding of the role was to strictly interpret the laws. An appeal was an exception.
Mr. Ostroff then inquired as to any past experience on Town boards or groups that had to educate and resolve disputes. Ms. Coughlin again noted her background as a paralegal and her work with the Jewish/Arab communities. She felt she was able to assess and found a number of disputes could be resolved.
Mr. Ostroff asked if her travel schedule presented a potential conflict. Ms. Coughlin responded that she would schedule around that (ZBA meetings). This year there were only four trips.
Mr. Ciccariello inquired if Ms. Coughlin had any thoughts about zoning variances allowed for specifics. Mr. Coughlin knew of one particular case involving a situation where a contractor poured a foundation that came close to a neighboring property. She was asked to sign a petition saying this did not offend her. She watched the process and saw a very thoughtful and deliberative process. It was time consuming but she thought the result was the best for the community and the homeowner. She understood it wasn’t a matter of public opinion that should waive the Board but a strict interpretation of the law. The establishment of a precedent that would over time dilute the rules and the exception had to be considered.
Charles Rodman stated that his role in public service had been non-existent. He has been a resident for just over two years and would like to contribute and he thought this position was apt for his background.
Mr. Ostroff asked Mr. Rodman for his understanding of the Zoning laws and approach to hardship cases. Mr. Rodman believed rules were not meant to be broken. The law was clear probably the result of many iterations of members of the town and state statutes. There was always an exception but his belief was to abide by the language provided. Playing by the rules didn’t mean overlooking the intent when it was clear.
Mr. Ostroff then asked about Mr. Rodman’s past experience on any kind of group to arrive at an outcome. Mr. Rodman responded that his role on boards was limited. He had done philanthropic work but as it related to zoning issues his experience was as a trial attorney. He had represented a number of applicants and petitioners in front of the ZBA and Planning Board and in court and thought he brought a wealth of experience although he was not sure it qualified him any more than Ms. Coughlin. If taken the time, he thought most people could grasp the code. The thing he could provide was a legal perspective and an understanding of the next step and the move after that, particularly if the ZBA thought there was a legal peril to making one decision or another.
Mr. Connolly found both candidates to be glowing and encouraged both to stay involved and keep an eye on things.
By paper ballot, Ms. Coughlin received four votes; Mr. Rodman one vote.
Mr. Ciccariello voted for Ms. Coughlin
Mr. Ostroff voted for Ms. Coughlin
Ms. Van Amsterdam voted for Ms. Coughlin
Ms. Gloff voted for Mr. Rodman
Mr. Connolly voted for Ms. Coughlin
REPORT OF NATICK MALL PERMIT FEES
Attorney David DeLuca of Murphy, Hesse, Toomey & Lehane noted that approximately nine months ago there was a request from the Board to conduct an investigation into the nature and extent of the permit fees paid by the Natick Mall. As a result of the building project, as with all projects, there were a number of applications which were reviewed and granted in accordance with the regulations of Natick and the Mass Building Code and permits were issued and fees assigned. The MGL enforces the State Building Code which was an extensive and detailed document which has the force of a statute. In that building code, as indicated in the report there was the provision for fees to be paid and includes new construction and alterations. The instruction with respect to the fees was very limited and gave
municipalities a great deal of discretion on how to determine the fees.
Most municipalities have a schedule, Natick included, that it was “x” per thousand but there were exceptions and sometimes because of the size a determination was made to set a special fee. In this case Natick had its fee schedule in place and the contractor worked in accordance with that fee schedule. An accurate account is to be kept for all the fees collected and that was done for this project as well as other projects. Looking at the law on what was right and reasonable, there were very few cases to give any guidance. One was Emerson vs Boston that determined it was a tax vs a fee and there was a more recent case against Attleboro by a funeral director and the court said it was proper to charge a burial fee. A September 2009 case dealt with Building Department fees and involved
Northbridge. The suit was brought and the Appeals Court determined a fee would be proper and enforceable so long as it was fairly reflective of the direct and indirect costs of providing services. Consideration of the time and effort and administrative costs for the review of plans, the inspection, and the follow-up were reasonable in the determination of the fees. That would be a monumental task to determine on an individual basis. Generally the fees were on a dollar per thousand or a square foot cost.
With respect to the analysis of the detail work done on this project, he (Mr. DeLuca) intended to turn the floor over to Mark Tebbets who was an expert consultant on building issues and reconstructed all the paper in this case. He worked with Mr. Tebbets and the process was to talk to as many of the people involved and a determined effort was made to review every piece of paper and every permit. There were lots of estimates and projections done but it was the permit paper that provided the conclusion. He (Mr. DeLuca) felt comfortable the information relied upon was reliable and he believed the process undertaken was fair and thorough.
Mark Tebbets noted this was a gigantic project with plenty of paperwork to review.
Mr. Connolly inquired as to the total cost of the project. Mr. Tebbets didn’t have it in front of him but noted it was in the report - $76,645,500. Mr. Ciccariello pointed out that was excluding site work, general conditions, elevators.
Mr. Connolly questioned if it could be as simple as just charging the fee based on the $76 million price tag. If this were a single family dwelling, Mr. Tebbets thought that probably could be done but with something like the Mall project there was no way to simplify it. He tried to take clear chunks and look at it. He took some of the larger stores to see their number and a few smaller stores to see how it related. He (Mr. Tebbets) felt good about the report and thought the fees were fair and adequate for what was done.
To Mr. Connolly’s query as to the total amount the Town collected, Ms. White responded that it was $1.86 million. That was the most accurate assessment there was. She explained that fees were collected from a variety of projects and as they were coming in they were not isolated.
In follow-up Mr. Connolly asked if the Treasurer could attest that the Mall paid the Town $1.86 million in fees. Ms. White didn’t think the Treasurer could do that. Ms. Gloff pointed out that it was Mr. Tebbets and Mr. DeLuca who went through the records and added them up. Mr. Tebbets stated that he checked what was taken in and he was positive it was correct. Asked how he knew that, Mr. Tebbets responded that the Building Commissioner took in the fees and handed them to accounting. Looking at the Building Department records and receipts, he came up with these numbers.
If the Building Department collected it, the Treasurer’s Office should show a receipt of collection. Mr. Ciccariello advised that was true but the Treasurer didn’t separate it by projects.
Mr. Connolly questioned the checks and balances, and Mr. DeLuca referred him to Exhibit M of the report. Because the checks came in big numbers, they were able to track several in that way.
Mr. Connolly understood it was complicated but he wished it were a lot more transparent. He asked if Mr. Tebbets was confident that everything that was supposed to be paid to the town was paid. Mr. Tebbets’s reply was, “yes, I do”. Asked if there was no doubt, Mr. Tebbets said, “no”.
Mr. Ciccariello disclosed that one of the applications and fee proposals for a store on which he had worked. For Betsy Johnson he was the architect and filed some of the affidavits.
Having been in the construction business and architect business for a long time, when he heard the Town didn’t collect appropriate fees, one concern Mr. Ciccariello had was that he never did a construction project where he was told by any Building Department to delete general conditions, site work and elevators. Based on his opinion, the Town was allowed to collect those fees. He understood the Town was not entitled to collect the off-site project management fee, but from his experience anything relative to site work was not normally allowed to be deleted. Was there something in the Mass Code or elsewhere that allowed the Building Commissioner to do so?
Mr. Tebbets responded that he had worked for the company that wrote the building code and interpreting it has been one of his responsibilities. What Mr. Ciccariello said was correct. The way it was written didn’t give a lot to go with in the state statute. If Mr. Melchiorri (Building Commissioner) was inspecting the elevator he could collect a fee, but in reality there was a different area of a State division that did those inspections. With regard to the site work, site work would have to be defined. It was the site work involved with the construction of the building that would be included. A permit wasn’t issued for a parking lot and to include that site work in the building office was not allowed.
Mr. Ciccariello countered that to build the infrastructure of the roadway was not part of the building construction but fees were collected where a parking lot was built. Mr. Tebbets responded that everything was overlapped and when put all together he would say the Town was paid adequately.
Mr. Ciccariello asked about general conditions and Mr. Tebbets noted that he was locked into seeing if the building permit and the work done meshed. Just looking at the letter (of the law), he would agree it shouldn’t be deducted but looking at the fees collected and the work done, it seemed they had worked out.
Mr. Ciccariello understood it was difficult to go back after the fact and try to assess, but he had some concern with some of the things that he had seen happen.
Mr. Ostroff inquired if there was anything the Town should do differently going forward with the idea of maximizing permit fees.
While he hated making a recommendation without talking to the Building Commissioner, the fact that people come in and tell the Building Commissioner what the fee was made it difficult. The Building Commissioner’s job was not to interpret it. His (Building Commissioner’s) job was to look at the fee and see if it seemed to be adequate. Because of that Mr. Tebbets said he was a strong advocate for square foot cost as a jumping off point to clarify the whole thing.
Mr. Ciccariello recalled that a few years ago some changes were made to the fees and the Building Department was given the authority to request the contract between the parties.
Ms. White thought it was a tremendous challenge for the Building Office to verify the stated cost of construction, but there wasn’t a good suggestion. Measuring the square foot and applying a reasonable cost, the code would have suggested $112 per foot but because this was such a high end development it was $225 per foot.
Mr. Tebbets suggested setting it that nothing every fell below a certain number. The square foot could be used as a guide. Natick didn’t have a mechanical permit and many jurisdictions were doing sprinkler permits. Things could be nailed down tighter.
Mr. Melchiorri (Building Commissioner) advised that HVAC was included in the building permit and sprinkler was the Fire Department. He added that he would be getting another check in the amount of $32,000 from the Mall.
Former Electrical Inspector Larry Forshner took a couple of exceptions to what had been said. One was the ambiguity about every city and town being different. The administrative part of the Mass Building code says collect fee for the cost of construction and the cost of construction was universal. Everything under the jurisdiction of the Building Inspector and any by-laws – that was where developers get creative. They will say they will bring an elevator inspector out from Boston and if general conditions were omitted they will start deducting costs such as administrative assistants, general foreman. Natick Mall was very aggressive.
Some cities and towns felt there was a need to clarify at the end of the job and have the developer fill out a cost affidavit. That was where everything was squared up. The developer sees what they owe and then got a certificate of occupancy. In this case they Mall deducted $41 million in general conditions and that was over $500,000 in permit fees.
Mr. Forshner continued that Newton felt landscaping should be included and felt it was important to qualify what was included. The Town couldn’t make up what to charge only their fee. What’s included was universal and the glaring omission was the site work and the landscaping. If he owned 40,000 square feet on Route 9 and wanted to put up a building and met all the zoning, he would get an architect/engineer to fill out a permit, submit material and get a permit and build the building. He could say that the excavation would be the only site work that would be under the Building Commissioner and where he planted the trees were his (Mr. Forshner’s) business and was not included in the permit. The Town created the Golden Triangle and will allow an applicant to build a building
that exceeds 32% of the ratio but it requires a special permit. The first sentence of the Zoning By-Law said it would be enforced by the Building Commissioner. The applicant (Natick Mall) agreed to pay money and agreed to a site plan review with enforcement under the authority of the Building Inspector. Everything was dictated to General Growth through the site plan review and enforced by the Building Inspector.
The Town received a final cost estimate from General Growth but they didn’t put it on the Town’s form. They drafted their own form and excluded costs for landscaping and site work. The final cost affidavit came in 1-1/2 months after the Mall had a full certificate of occupancy.
Mr. Forshner questioned if anybody had tallied exactly what was brought in and what it was for. There was a newspaper article two years ago that the Town was about to hire an audit firm, but there had never been an audit. He (Mr. Forshner when he was the Electrical Inspector) was ready to take the electrician to court and was asked to hold off because the Town was going to do an audit. It was never done.
Ms. White responded that the Town wanted to do an audit but it would have required General Growth Properties’ cooperation which was not forthcoming so the Town moved in another direction. She added that not all site work was associated with fees.
If there was good reason to think the building permit fees were less than they should have been, Mr. Ostroff inquired as to what recourse the Town had.
Mr. DeLuca advised that it would be a similar process as the Northbridge case. Initially the court denied the Town’s ability to collect anything more than it collected. The Appeals Court said the fees could be based on direct and indirect costs. It got into a laborious calculation and would be an enormous undertaking to prove. The Community Development Office and the Building Inspector in particular were not tax collectors. They were there for public safety reasons to make sure the buildings were built to code and he (Mr. DeLuca) thought Mr. Forshner would agree that all inspections were done and the building opened only because the inspections were done and in order.
Mr. DeLuca told the Board that he didn’t think the court would have upheld the building not being allowed to open just because of the money. In his opinion it was a good faith dispute over site work and vertical lifts and whether they were included or not the amount of mitigation paid couldn’t be ignored which was over and above any permit fee collected.
Mr. Ostroff interpreted Mr. DeLuca to be saying that if the Town believed there was a basis to pursue this it could be done at a considerable investment of time and expense with a potential for some reward. Mr. DeLuca responded that he didn’t look at all the paper. Mr. Tebbets did, but he (Mr. DeLuca) wasn’t sure in terms of purposeful mis-representation the evidence was there.
Mr. Forshner countered that this wasn’t the first time he heard about there being so much mitigation that it was enough. Nobody from the Town could give the Mall that pass.
Ms. White assured him that nobody made a decision in that way. No decision was made by any Town employee beyond anybody’s authority. That wasn’t the case.
Mr. Connolly said he thought there may be some closure with this report, but he would be leaving the meeting more confused than when he came in.
Mr. Ciccariello stated that he thought everybody did their job and thought they were doing the right thing. Everything was open to interpretation and while he (Mr. Ciccariello) disagreed with some of the stuff he was not ready to spend $100,000 in litigation with someone who has filed bankruptcy.
Ms. Van Amsterdam was curious to find out for a project in the future if there was a way to isolate some of the permit fees or categorize the money to tie them back to a specific project. In hindsight Ms. White thought that would have been a wise move. This project changed the Town’s revenue stream and it would have been helpful if that had been accounted for separately.
A recess was called at 8:30 p.m. The meeting was reconvened at 8:50 p.m.
NEW ENGLAND REGIONAL COUNCIL OF CARPENTERS: APPLICATION FOR ONE DAY BEER & WINE LICENSE; PARADE PERMIT; ENTERTAINMENT LICENSE
Richard Dean, Business Manager of the Carpenters Local Union 275, appeared before the Board to request a one day liquor license, entertainment permit, and a parade permit for an event on September 27, 2009. The event was the Annual Motorcycle Ride for Diabetes Research that was originally held in Bellingham, but the decision was made that it would be best to show people that came on the ride part of the jurisdiction covered by the union. The Carpenters Union produced over 1 million man hours at the Natick Mall which was why they chose the Amvets to hold the cookout following the ride.
Mr. Dean noted that the Amvets was under the impression this was the first time they had been asked for a permit. He contacted Framingham, Sherborn, Lincoln, Sudbury, and Wayland (the Towns through which they would be riding) and had the blessing from all those Chiefs of Police.
Mr. Ciccariello noted Safety Officer Lt. Brian Lauzon’s recommendation for approval.
On a motion by Mr. Ostroff, seconded by Ms. Van Amsterdam, the Board unanimously voted to grant the New England Regional Council of Carpenters a parade permit to conduct a motorcycle ride through Natick on September 27, 2009.
With respect to the application for a one day beer & wine license, Mr. Ostroff was of the understanding that the application was filed because it was at a location with a club license. Attorney DeLuca advised that was correct and explained that the Amvets never applied for the special permit that would have allowed the club to lease out their premises to a party to conduct an event and there was not enough time to achieve that between now and the event. The statutes restrict club licenses to members and guests.
Mr. DeLuca noted that under the circumstances what was suggested was the opportunity for the group to apply for a one day license to be issued. Close attention had to be paid to the premises. The one day license could not be issued for the premises of the existing club license which only includes the four corners of the building and not the outside.
Mr. Ostroff inquired if that was clear to the applicant. Mr. Dean advised that he had Mr. DeLuca’s letter and their attorney looked at it and agreed that it was something that had to be done. He added that the Union was making every effort to purchase the beer & wine through a vendor and have a licensed TIPS server.
Mr. Ciccariello pointed out that the Carpenters Union would not be able to serve beer & wine inside the premises, only outside. Mr. DeLuca confirmed that to be correct. The one day license would be issued to a location different than the licensed facility.
A motion was made by Mr. Ostroff to grant Richard Dean a one day beer & wine license for premises adjacent to the Amvets at 55 Prime Parkway for September 27, 2009 from 1:00-5:00 p.m. Seconded by Mr. Connolly and unanimously voted.
Mr. Ostroff acknowledged the good deed the Carpenters Union was doing for the community. Mr. Dean noted that the Union took great pride in their work and great pride in working with the Town.
Regarding the Carpenter Union’s application for an entertainment license, Mr. DeLuca told the Board that in his view whenever there was a cost associated to musical entertainment, an entertainment license was needed.
A motion was made by Mr. Ostroff to grant the Carpenters Local Union 275 an entertainment license for an event to be held at the Amvets on September 27, 2009. Seconded by Ms. Gloff and unanimously voted.
ATTORNEY GEORGE RICHARDS: VILLAGE AT NATICK CENTER HOOP 2 PROJECT
Attorney George Richards stated that he was representing Cochituate Corp. and was here to keep the Board apprised of projects in the downtown. With Mr. Richards was his client Chris Carr.
Mr. Richards advised that the applicant wanted to do a Smart Growth project and identified the parcel as right behind Water Tight between Willow and Cochituate Street. Currently it was a Foreign Motors car dealer repair. It was intended that the units would be marketed under $400,000 in recognition of the demand for housing that was relatively affordable for people who want to stay in Natick. The proposal was for 44 units which would produce 7-8 affordable units although that number could change subject to site plan review. He added that there were some major drainage issues that would be addressed. There had been a meeting with Town Engineer Mark Coviello and he had a plan.
Mr. Richards showed plans for the building and green space and noted that no waivers were being sought from the Planning Board other than density.
Mr. Richards continued that the HOOP by-law only talked about units, not the size. They could probably build 29 units 3,000 square feet but would then be looking at $600,000-700,000 per unit. The applicant wanted to build smaller units. The HOOP density didn’t deal with that but the Planning Board has waived it before. They were working with the neighbors and were cautiously optimistic. They would be before the Planning Board Wednesday.
Mr. Ciccariello inquired as to the number of units allowed in the HOOP and was told by Mr. Richard that with the bonus it was 29. To Mr. Ciccariello’s comment that the applicant was asking for 15 more units, Mr. Richards noted that the only HOOP projects approved and built were the Armory where the density was waived 50% and South Avenue where the density was waived 40%. He (Mr. Richards) was on the Planning Board when the by-law passed and the Planning Board went with that number to see how it went and recognized it may have to be adjusted. There has yet to be a HOOP project built that complied with the by-law.
Asked to comment on the process, Community Development Director Patrick Reffett advised that this was a HOOP project that required a special permit. It was in the HOOP 2 district which had a lesser density than HOOP 1. It was a challenging site and what was proposed was an effort to work with the Town’s zoning to clean up an area of concern with folks that live around it. This project would create a residential environment.
The density was above and beyond what was allowed, but Mr. Reffett noted there were some extenuating circumstances and the Planning Board may or may not afford an additional density for the site. The project had to illustrate the response to design, character, and a quality environment for those that live in the project and fit into the fabric of the community.
Mr. Ciccariello inquired if the project had to go before the Design Review Board and Mr. Reffett’s reply was, “absolutely”. He further advised that there was a full permitting process before the Planning Board.
FIRE CHIEF REPORT ON AMBULANCE BILLING
Ms. White distributed a proposed amendment to the Ambulance Billing Collection Policy.
Fire Chief James Sheridan noted that in June 2007 the Board established an Ambulance Billing Policy that made the billing company meet certain criteria and made the Chief meet certain criteria. It’s been a challenge especially scheduling meetings with the Town Administrator and Chair of the Board of Selectmen. He felt the proposed amendment seemed to make it easy to obtain and schedule the meeting.
Ms. White specified that paragraphs 6 & 7 of the policy had been changed to read:
6.Coastal Medical Billing shall forward all requests for abatement to the Natick Fire Department. The Chief of the Natick Fire Department shall review abatement requests with the Town Collector and together they shall determine which requests, if any, shall be approved. In making such determinations the Chief and the Collector may request further information or consult with Coastal Medical Billing as they deem necessary.
7.The Chief of the Natick Fire Department or his/her designee after consulting with Coastal Medical Billing shall meet in May of each year with the Town Collector to discuss unpaid accounts and to make a final decision as to further pursue payment/penalty or to expunge said account or accounts.
Ms. White pointed out that the gist was to have the team approving the abatements and write offs be the Chief and the Town Collector. It was easier to accomplish and it was consistent with the current practice in other areas of abatements and write offs.
Mr. Ciccariello felt the Board had spent a lot of time putting the policy together and asked how it had worked. Chief Sheridan noted that it was difficult to schedule meetings with the Chair. If the uncollectibles were left hanging out there, there was up to $1/2 million which raised a red flag. It was truly owed, but would never be collected. The ambulance billing company did a tremendous job tracking these down, but at some time they had to be written off.
After this policy was put into place, Ms. Gloff noted there was one meeting when she was the chair and at that time a lot of old accounts were taken care of, but now it had to be an ongoing process.
Referring to a print out from Coastal Billing, Mr. Ciccariello questioned if the six abatements listed were the abatements for Fiscal 2009. Chief Sheridan explained it was a matter of terminology. When somebody had a hardship it was called an abatement.
Ms. Van Amsterdam inquired as to what percentage was below a certain income level and what percentage was saying they had a hardship and couldn’t pay. Chief Sheridan didn’t know.
When asked if the Coastal Billing was a three year contract, Chief Sheridan advised that it was renewed automatically on an annual basis. The Town could get out of it with a 90 day notice. In follow-up Mr. Ciccariello asked if it was just automatically extended or if another RFP had been issued. Ms. White noted there were other billing companies and the administration could look into it.
Ms. White added that the Town did aggressive billing and collection efforts. When talking to the Collector this morning about changing the policy, he (Collector) referenced the motor vehicle excise as an example. He left them (excise) on the books forever.
Mr. Ciccariello questioned why the Collector would be involved in the abatement determination and Ms. White responded that the Collector did all other abatements and exemptions in the Town except water & sewer bills. Mr. Ciccariello questioned what would happen if the Collector and the Chief disagreed, and Ms. White advised that a tie vote would be a no vote.
Mr. Ciccariello pointed out that under the original policy the Chief was given the authority and now another person was being added. Other than the Collector, Ms. White found it unusual to have a department head be the sole authority for abatement.
Now that everyone was supposed to have insurance, Ms. Van Amsterdam didn’t see how someone could say they don’t have insurance. Mr. Connolly noted that not all policies cover ambulance.
Mr. Ciccariello stated that he would just as soon leave the policy the way it was with the Fire Chief and at the end of the year the Chief come to the Board on payments that can’t be collected.
Ms. Gloff questioned if Mr. Ciccariello wanted it to come before the full Board of Selectmen. Mr. Ciccariello responded that right now the Chief had the right to abate and at the end of the year he comes to the Board or the Board’s designee to talk about uncollected accounts. It wouldn’t be every day and if the Chief was comfortable with that, it was OK with Ms. Van Amsterdam. Mr. Ostroff was concerned with the abatements coming before the Board. The Board didn’t get involved in other abatements and he wouldn’t want someone’s appeal for something they couldn’t afford to be a public record.
Mr. Ciccariello pointed out that in this case there was no appeal process. With water & sewer there was an appeal process. One problem in the past was all the unpaid bills that just kept going on and on and the Board decided to give the Chief the authority to do an abatement.
Ms. White suggested adding a #8 to the policy – that at the end of the fiscal year the Fire Chief would have to provide the Board of Selectmen a summary of all abatements and accounts expunged.
Having done the expunge once, Ms. Gloff didn’t think the Chair of the Board of Selectmen would contribute much to that.
Ms. White agreed that it was really an administrative action and it was a task handled mostly with the Tax Collector.
Since she wasn’t certain the Board wanted to change the policy and since she had been through the expunging process, Ms. Gloff offered to work with the Fire Chief and Town Administrator to figure out how these numbers would play out.
On a motion by Ms. Van Amsterdam, seconded by Mr. Connolly, the Board unanimously voted to have Ms. Gloff work with the Fire Chief and the administration to create a method of accounting for what’s been billed, what’s adjusted, and what’s expunged.
ASMA REAL ESTATE LEASING, LLC: APPLICATION FOR JUNK DEALER’S PERMIT
Representing ASMA Real Estate Leasing, LLC (Arch Stanton) was the President Andrew Youngman.
ASMA Real Estate Leasing, LLC requested a permit to buy, sell or exchange precious metals, gem stones and jewelry for premises at the Natick Collection 1245 Worcester St., Suite 1035 for the period of October 1, 2009 through October 31, 2009. Mr. Youngman explained that their hours of operation precluded ASMA Leasing from signing a long-term lease with the Natick Collection. He was happy to come in every month or work with the Board to ease the burden.
Mr. Ciccariello questioned why ASMA couldn’t come to a lease agreement for a longer period than a month. Mr. Youngman advised that the Mall wanted them to operate during all the Mall hours. They were primarily only open on weekends.
Mr. Ostroff wasn’t sure Mr. Youngman should have to come in person every time, but Mr. Ciccariello noted that ASMA only had a one month lease and he thought the best the Board could do was to give them a permit for one month.
A motion was made by Mr. Ostroff, seconded by Mr. Connolly, to approve a permit for ASMA Real Estate Leasing to buy, sell or exchange precious metals, gem stones and jewelry for premises at the Natick Collection 1245 Worcester St., Suite 1035 for the period of October 1, 2009 through October 31, 2009. The motion passed on a 4-0-0 vote. Ms. Van Amsterdam had left the room and didn’t vote.
CITIZENS CONCERNS
- South Natick Hills Blasting
Having come before the Board awhile back on the blasting for South Natick Hills, Bill Bohler reported that it had subsided. He distributed a flyer passed out to the neighbors and for reference for future developments a copy of the State regulations on blasting. He felt his neighborhood had been compromised because of this and wanted other areas of Natick to learn from this.
Ms. White commented that it wouldn’t be practical for the Town to have on staff a person expert in this area. She clarified that she wasn’t suggesting the Fire Chief and his staff didn’t have expertise but the Planning Board could require a peer review process at the developer’s expense. The Planning Board could be asked in the future if there was going to be any blasting to bring in that kind of expertise.
Mr. Bohler thought part of the problem was that nobody was sure what the rules were. If you ask different people you get different answers. On August 11 the blast was so bad it knocked a fan out of a window.
It was Mr. Ciccariello’s understanding that any time there was blasting, the Fire Department was on site. Mr. Bohler didn’t think the Department was keeping track of what they were putting in their loads.
Chief Sheridan gave assurance that a trained firefighter was on site each and every time there was a blast. A seismograph was set up and they (South Natick Hills developer) didn’t exceed the Town’s levels which were half the state’s. Chief Sheridan expressed his frustration with not being able to resolve Mr. Bohler’s concern. From what he (Chief Sheridan) could determine, South Natick Hills was in compliance. The Department received a lot of complaints from the neighborhood and each time they looked at the reports the developer was in compliance.
Mr. Ciccariello requested that Mr. Bohler be given a copy of the Town by-law and the completed logs.
Mr. Ciccariello believed the abutters were notified when the blasts were to occur. Chief Sheridan was of the understanding that the developer went around and the neighbors could be put on a list to be called five minutes before the blast. The offer was also made to take pictures before the work began.
Mr. Bohler stated that he was an abutter and was never notified. He didn’t know there was any blasting going on until the trucks were lined up for work.
Mr. Ciccariello raised the possibility of setting up a meeting with the developer and asking them to give a specific schedule of blasting and to provide more notification. Chief Sheridan advised that he had made that call and was told there was no blasting scheduled, but as they went forward they may require some blasting for foundations.
Mr. Ciccariello asked if Mr. Bohler wanted a call when they were going to blast. As it was at the end, Mr. Bohler thought it wasn’t necessary. He did want to put it on record that he had a little water problem. Mr. Ciccariello advised that he (Mr. Bohler) would have to notify the developer in writing if there was a problem and the sooner the better. Mr. Connolly suggested that Mr. Bohler copy the Community Development Director and the Board of Selectmen.
- Farm Hill Road – Walking Trail
Michael Brody, President of the Farm Hill Residents Coop, referenced a letter he sent to the Board outlining the problem that exists between the Association and the Planning Board for the last four years. The Association met with them 4-5 times a year and each time it was the same. The Eisenmenger walking trail was constructed without the benefit of proper citing, proper engineering, and proper construction. Nothing about the trail was done reasonably well. The trail was falling apart.
Mr. Brody noted that the Planning Board had done some things the Association thought was detrimental to the property. The developer was B&B and two issues came up. When the condos were built they were built closer to the hill than originally intended. Nobody has been able to come up with the document. At one time the Planning Board along with B&B had a bond for completion of all the issues for about $130,000. That was reduced to $81,000 and then reduced again and then to $25,000. With the full knowledge the trail was degrading the money was turned back to Mr. Burke and now the Planning Board says they have no money to do anything.
The Association wanted experienced trail designers and engineering. No as built plans exist. The trail was built by a landscaper who shaved the berm down because he needed earth to backfill against the condos. Topographic considerations were important. The far end was about a 70 foot drop. It was a disaster. On part of the trail stone dust was used and the water wipes it out.
Mr. Brody continued that it had been said that if the trail was rebuilt with the proper manpower and material it was anticipated to last 15-20 years with simple maintenance but that was not happening. The Town was responsible for the poor design and poor building. At one time the Town had the money to correct the problem, but the money was given back leaving $5,000 and what had to be done couldn’t be done for $5,000. The Conservation Commission gave an additional $6,000 which was probably only half of what was needed.
There were 43 homes (in the development) that contributed in excess of $1/2 million in taxes. The homeowners took care of the trail along Woodland Road because it was properly built and they maintained it.
Since the Planning Board made the decision, other than discussing it with the Community Development Director and Planning Board, Mr. Ciccariello noted that the Board of Selectmen didn’t have a lot of jurisdiction, but they could try to find out what’s going on and see that Mr. Brody gets the information.
Mr. Brody felt that would help, noting that he had spent a lot of time with Mr. Reffett (Community Development Director) and would like to have the thing resolved or the trail closed.
Mr. Connolly inquired as to who oversaw the trails. If it was truly a safety concern, if the Planning Board wouldn’t do it, he thought the Selectmen should trump them and close it down.
Ms. White informed the Board that she met with Mr. Brody and looked at the site and would suggest there was a difference of opinion on what would create a safe site. The Town owns 100’s of acres of trails and not all of them were “x” feet wide and in perfect service. There was about a 15 foot section that was paved and about half was showing signs of collapse into the ravine that was a deep drop off. It requires some attention and both the Community Development Director and Town Engineer were of the opinion the $11,000 would fix the site. Having spent quite a bit of time on this, it was her (Ms. White’s) understanding the two parties couldn’t come to agreement on what it would take to fix the problem. The Planning Board was certainly ready, willing, and
able to spend the money but an agreement couldn’t be reached.
- Natick Service Food Pantry Construction
Bill Nunnery of 12 Cottage Street addressed the Board concerning the ongoing construction of the Natick Service Council’s food pantry. Much to the surprise of the abutters on August 5 a 36” diameter tree was cut down which exposed a lot of heating and ventilation piping. The next day he e-mailed a letter and copied the Board of Selectmen and the Tree Warden.
Mr. Nunnery was asking someone to respond to the issue rated in his August 6 letter. Did any Town official have a role in cutting down the large tree at Coolidge Gardens? The tree was very old and there for a long time. Could the Town do anything to prevent additional cutting and did the Building Inspector or ZBA have an issue with hanging the ventilation pipe from the building.
Mr. Nunnery presented a copy of the site plan showing where the tree used to be and commented that he couldn’t believe ventilation pipes could just be hung like that. When people came before the ZBA he would ask that consideration be given to putting the concerns of the abutters into the decision and how those concerns were addressed and mitigated or not mitigated. None of the concerns were immortalized in the decision. Even if they couldn’t be addressed he thought it was important.
Mr. Ciccariello asked if Coolidge was an historic building. Ms. White didn’t know, but Mr. Ciccariello asked that it be found out. He thought the ZBA decision showed the trees were to remain in place.
Ms. White thought the key was getting the Service Council to reply to the gentlemen’s letter.
Mr. Connolly noted that he had gone to the ZBA hearing and the abutters outlined their concerns.
Nick Connolly of Webster Street questioned where the abutters would go to have their concerns addressed. The tree was on the site plan and the abutters never knew it was to be taken down. He heard various explanations. One was that the tree was damaged during the construction work. Other people said there were going to be solar panels. It has exposed an eye sore with the piping.
Mr. (Nick) Connolly added that the parking that was promised wasn’t done. He wanted to be amenable with the use but if the Service Council was going to continue to park out front when there were plans for overflow parking, there were a lot of older folks that were being displaced and there were concerns.
Ms. White suggested that Mr. (Nick) Connolly see the Building Commissioner as he enforced the permits issued by the ZBA and Planning Board. She noted that if a tree was on private property the owner could cut it down even if it was healthy, but if it was shown on the plan to remain, she couldn’t think of any reason why the Service Council would be allowed to cut it down. However, she had not reviewed the permit.
Mr. (Nick) Connolly noted that the sidewalks were horribly chewed up and would be an issue when it snowed. There would be a buildup of ice and there wasn’t a drain. Initially the Service Council wanted to park where the tree was and now the tree wasn’t there.
VETERANS DIRECTOR: APPOINTMENT OF INTERIM DIRECTOR
Ms. White reported that she spoke to Bill Leamy, the Training and Compliance Officer at the Massachusetts Department of Veterans’ Services regarding options for replacing the Veterans’ Service Director both on an interim and permanent basis.
It was her (Ms. White’s) recommendation that the Board designate the Director of Human Services and Council on Aging, Moira Munns, to this position on an interim basis. Sheila Young, who serves as the Administrative Assistant for the Veterans’ Services Director, also serves as Administrative Assistant for Ms. Munns; thus continuity of services could be achieved. Mr. Leamy strongly urged that any interim appointment should be short-term. She has been advised that the Veterans’ organizations were concerned about this vacant position, particularly with Veterans’ Day approaching.
Ms. White advised that the law required that a community of Natick’s size have a full-time Veterans Services Officer who was an honorably discharged veteran. There were, however, provisions for contiguous communities to form a Veterans’ District. There were also provisions that such a municipality may assign non-veterans’ business to the full-time veterans’ agent, provided that he/she was available to perform veterans’ business during normal working hours. Both alternatives require approval of the Massachusetts Department of Veterans’ Services.
Ms. White further advised that Mr. Leamy urged that a community of Natick’s size should have a full-time Veterans’ Services Officer fully dedicated to these responsibilities. Notwithstanding the concerns, she has contacted each contiguous community to gauge their interest in forming a district in the event that was of interest to the Board. She had reached out to Framingham in 2007 but they were not, at that time interested. She also spoke to Sherborn this week and it did not appear to be of interest to them.
Ms. White noted that she was also exploring ideas for combining duties. There was a need to move quickly on this issue and it was her hope, with the Board’s input, to have a plan developed for consideration at the next meeting.
Mr. Ostroff asked about advertising and Ms. White responded that she had not begun to do so. She made the assumption the board would want to at least hear about the opportunities for a district.
Mr. Ostroff had no objection to considering the district, but felt the most important thing was to get a qualified person on board. This was an opportunity to recruit and hire an outstanding individual and he hoped that would be made an urgent priority. He felt Ms. Young had a good handle on the many cases using the service and to him she was the most critical link. He didn’t get the sense Ms. Munns would be any more than the title. Ms. White stated that would be her expectation.
Mr. Ciccariello inquired if contact had been made with Wellesley and Needham and Ms. White replied that she had contacted Wellesley but not Needham. Needham wasn’t contiguous. She hadn’t heard back from Wellesley.
Mr. Connolly noted that he had a conversation with Ms. Munns today and she said she was comfortable (serving as interim Veterans Officer) as long as it was short-term. He didn’t like the thought but the sooner this position was filled the better. He believed it should be a full-time position.
President of the Natick Veterans Council Ed Jolley told the Board that the Council would like to see the position advertised and would like to see it filled as quick as possible. To have a temporary person, the Council would like to have a veteran and somebody that understands what the Veterans’ Agent did. As far as record wise and making out the forms, it had to be remembered that the individual had to be up on veterans’ issues and deal with the state and federal government.
For somebody on a temporary basis, Mr. Jolley suggested calling Commissioner Kelly and seeking his recommendation for somebody to cover the job temporarily like a retired veterans’ agent. He understood what Ms. White was saying about Ms. Young, but he didn’t believe the weight should be put on her. In his opinion it was the wrong thing to do and the longer you waited the harder it would be for the person coming in. Mr. Jolley noted that the Veterans Council would like to be part of the interviewing committee.
Warren Griffin, State representative for the Marine Corp League at the State House and Mass Executive Council for Veterans Advisory Board, noted that Framingham faced a similar problem a couple of years ago and they took a retired Veterans Agent to serve in the interim position. The spirit of the law was for a veteran to serve as the interim.
Mr. Ciccariello asked Mr. Jolley to let the Board know who they would like to have represent them on the interview committee.
Ms. White stated that she would be more than happy to contact the Secretary of Veterans Affairs to see if they could come up with a Veterans Agent to help for a couple of weeks, but somebody had to be appointed tonight.
A motion was made by Ms. Gloff to appoint Moira Munns as the temporary Veterans Agent with the understanding that the Town Administrator would contact the Office of Veterans Affairs to see about getting a retired Veterans Agent. Seconded by Ms. Van Amsterdam and unanimously voted.
Mr. Ostroff understood the need to make an appointment tonight but took to heart the concern expressed. He hoped to have a plan presented at the next meeting for both the interim and long-term positions.
TOWN MEETING WARRANT ARTICLES:
Articles 12 & 13: Acceptance of MGL c.64L s.2(a): Local Option Meals Tax; Acceptance of MGL c.64G s.(a): Local Option Added Hotel/Motel Tax Mr. Ostroff advised that he appeared at the Finance Committee hearing and spoke as an individual member who asked the Board of Selectmen to put the articles on the warrant but conditioned his comments on saying that the Board had not debated or voted on either article.
One thing to consider if the Town was to adopt either or both was to have a sound plan in place for how the Town may use the revenues. One issue was to consider the long-term financial interest of the Town and citizens and the reserves and capital needs as a way to use half or most of the incremental revenue. It was important to consider the effect on the businesses and the citizens who would pay the tax.
For the meals tax, Mr. Ostroff thought it important for Framingham and Natick to consider acting in concert. The Framingham Board of Selectmen supported the passage of both of these taxes to be applied to capital. Looking at what other states charge for meals and lodging taxes, the trend was to be more than Massachusetts but that was not justification. He would not want to put Natick in a position of disadvantage.
If something like this was going to be done, Mr. Ciccariello believed public hearings should be held with notification to the hotels and restaurant owners. If the Board was going to take a vote, he would like to hear from restaurant owners and businessmen. He agreed with Mr. Ostroff that if he (Mr. Ciccariello) were going to support something like this, even though the Board couldn’t stipulate where the funds were going to be used, the Board of Selectmen could create a policy that makes a recommendation that any funds collected be used for specific capital improvements. He (Mr. Ciccariello) would prefer that it not be used for operating but rather to offset some debt exclusions being talked about – the high school and community senior center – and a percentage should go to the
reserve accounts. He would not support using it for operations.
Finance Committee member Tony Lista wanted to bring to light a couple of things regarding the economy, the industry and the taxpayer. The taxpayer already had to accept a 75% increase in their sales tax and had to accept an increase in liquor tax. Two years ago the taxpayer supported an increase in taxes equal to about $500 per household. The taxpayers had a burden on their wallets. While this may sound little, in the big picture it has been an extra burden on the taxpayers.
The National Restaurant Association reported there has been 19 straight months of declining sales. Hospitality service was down 19% in Massachusetts and the Wall Street Journal reports that dining out was down 6% this year. It was important for the Town to consider revenue options, but cannot forget the businesses and taxpayers were already sharing a big burden. Before considering adding tax, Mr. Lista felt consideration had to be given to looking at the structural problems facing the Town and perhaps exploring the sharing of resources and further exploring the recommendations from the Expense Control Task Force.
Mr. Lista urged the Board not to put this (local option taxes) in front of Town Meeting, but if the Board did put it in front of Town Meeting, he felt a policy statement should be made and the money directed to some place. The money should be used in an appropriate way. He would like the Board to make a policy statement that at a time certain when the economy was better that it (local option taxes) be put back on and removed.
If it were up to the Board to vote these taxes, Mr. Ostroff said he would want to have a hearing, but as Town Meeting appropriated the money and the Board was making a recommendation to Town Meeting, he would support and agree that the Board create a policy statement. He thought it was worth having further discussion.
Mr. Ostroff added that input had been received from the Crowne Plaza and Hampton Inn on Article 13 (local hotel/motel tax) in which they talked about the competitive situation and their concern that business travelers would gravitate toward Marlborough because Marlborough has said they won’t do the additional tax. He (Mr. Ostroff) did research over the weekend and found for comparable hotels it was $40 less in Marlborough than Natick. For people concerned, there already was an incentive to go to Marlborough.
Article 14: Acceptance of MGL c.140§139: Exempt Dog License Fee for Persons 70 and Older
On a motion by Mr. Ostroff, seconded by Ms. Van Amsterdam, the Board unanimously voted to support favorable action on Article 14.
Article 15: Town Forest: Transfer to Conservation Commission
The Board was in receipt of a letter from the Chair of the Open Space Advisory Committee in favor of Article 15.
Mr. Ostroff noted that the point was to put the Town Forest under the control of the Conservation Commission and his recommendation would be to transfer the care, custody and control to the Conservation Commission with a Town Forest Committee similar to the one appointed by the Board of Selectmen. If there was a future need to expend funds, the Conservation Commission had the authority and the means to do so.
Mr. Ostroff further noted that the Town Forest Committee voted to support Article 15. They (Town Forest Committee) were interested and enthusiastic about having the opportunity to work with other people with the expertise and it was good to know there were funds there.
A motion was made by Ms. Gloff to recommend favorable action on Article 15 with the caveat that the Conservation Commission be authorized to appoint a Town Forest Committee if they so desire. Seconded by Mr. Connolly. The motion passed on a 4-0-0 vote. Ms. Van Amsterdam had left the room and did not vote.
Prior to the vote, Chair of the Open Space Advisory Committee Martin Kessel stated that he agreed with Mr. Ostroff and added that the original deed did not guarantee the land would be preserved forever. Transferring it to the Conservation Commission would.
Mr. Ostroff noted that he spoke with the Hunnewell family and their intent was that it be preserved forever.
A motion was made by Ms. Gloff to support favorable action on Article 16. Seconded by Mr. Connolly. The motion passed on a 4-0-0 vote. Ms. Van Amsterdam had left the room and did not vote.
OPEN SPACE ADVISORY COMMITTEE: GRANT APPLICATION
Ms. White noted that Mr. Kessel, on behalf of the Open Space Advisory Committee, was seeking to apply for a grant under the Recreation Trails grant program that would enable a walking trail in the area known as Pine Hill. It was a 50/50 match with the Conservation Fund money and the grant money.
Mr. Kessel noted that the Conservation Commission would allocate $3,000. The grant request was $7,700. Although he was not sure the Board of Selectmen’s authorization was needed, the grant had to be filed by the end of the week.
Mr. Ostroff moved to support the grant application and authorize the Chair to sign any applicable paperwork. Seconded by Ms. Van Amsterdam and unanimously voted.
Article 59: Amend Zoning By-Laws: Natick Center Parking Requirements for Restaurants
Mr. Ciccariello advised that this article would be discussed at Thursday’s meeting.
Mr. Ostroff noted that the article would be before the Planning Board on Wednesday and he anticipated the Planning Board asking for the Selectmen’s position. Mr. Ciccariello responded that he had talked to the Community Development Director and Mr. Reffett was in favor of the Board waiting until Thursday to discuss.
ACCEPTANCE OF RESIGNATION: CONSERVATION COMMISSION
On a motion by Ms. Van Amsterdam, seconded by Mr. Ostroff, the Board unanimously voted to accept the resignation of Evan Pagliuca from the Conservation Commission.
STREET ACCEPTANCE: VOTE LAYOUT, SCHEDULE PUBLIC HEARING
On a motion by Ms. Gloff, seconded by Ms. Van Amsterdam, the Board unanimously voted the intent to make a layout for: Yorkshire Drive (the extension of), Ice House Lane, Newfield Drive, Main Street.
A motion was made by Ms. Gloff to schedule a public hearing for October 5, 2009 for the acceptance of Yorkshire Drive (the extension of), Ice House Lane, Newfield Drive, Main Street. Seconded by Ms. Van Amsterdam and unanimously voted.
DPW EQUIPMENT MAINTENANCE: SURPLUS EQUIPMENT
Mr. Ostroff moved to declare the following property as surplus:
1953 Catepillar Road Grader Vin #ST11470
1960 Sicard Jr. Snow Blower Vin #399FR
1999Excel 4600 mower Vin #8068560
Seconded by Ms. Van Amsterdam and unanimously voted.
TOWN CLERK’S OFFICE VACANCY
Ms. White noted that the Board had been notified by e-mail of the vacancy that exists in the Town Clerk’s Office and the intention to post the vacancy internally. That step was taken because even if a union member applied it would result in a vacancy elsewhere and there would be time to come before the Board to ask for permission to advertise. There was an internal candidate, but she would like permission to advertise the position if the internal candidate was not selected.
Ms. Gloff moved approval. Seconded by Ms. Van Amsterdam and unanimously voted.
MINUTES
On a motion by Ms. Van Amsterdam, seconded by Mr. Ostroff, the Board unanimously voted to approve the minutes of the February 9, 2009 meeting.
On a motion by Ms. Gloff, seconded by Mr. Ostroff, the Board unanimously voted to approve the minutes of the February 13, 2009 meeting.
FRANCONIA AVENUE: REQUEST FOR BLOCK PARTY
On a motion by Mr. Ostroff, seconded by Ms. Van Amsterdam, the Board unanimously voted to approve Donna Murphy’s request to close Franconia Avenue from Overhill to Gilbert Road on September 26, 2009 from 1:00 p.m.-6:30 p.m. for a block party.
NATICK SOCCER CLUB: REQUEST FOR BANNER
On a motion by Ms. Van Amsterdam, seconded by Ms. Gloff, the Board unanimously voted to approve the Natick Soccer Club’s request to hang a banner across Main Street for the period of October 2-9, 2009 in advertisement of the annual Columbus Weekend Soccer Tournament.
TOWN ADMINISTRATOR NOTES
Ms. White referenced an e-mail from Environmental Compliance Officer Robert Bois regarding Mr. Brown’s complaint of Natick Paperboard’s release of toxic waste into the water stream. Mr. Brown was interviewed by the DEP Strike Force who also talked to the Newark Group contractor and determined no illegal activities or violations occurred. DEP closed out their investigation.
Ms. White advised that the Interim Town Clerk, Onorina Maloney has received the designation of certified Massachusetts clerk.
SELECTMEN’S CONCERNS
Mr. Ostroff announced that a Pow Wow was being held at the Cochituate State Park this Saturday and Sunday.
Mr. Ostroff noted that the Special Election on January 19 presented an opportunity for communities with debt exclusions. He also suggested that should Town Meeting vote a Charter change for the Town Clerk position, the Board may want to put the question on the ballot for that election. He further noted that it was ruled by the State Auditor that the special election constituted a mandate for cities and towns and the State was liable to pick up the cost.
Mr. Connolly advised that another meeting of the Viet Nam Moving Wall committee was scheduled for Wednesday this week.
Mr. Connolly called attention to a letter in correspondence from former Selectman Paul McKinley concerning the water & sewer rates.
ADJOURNMENT
The meeting was adjourned at 11:45 p.m.
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Kristine Van Amsterdam, Clerk
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