THETFORD — The former chair of the Thetford Selectboard has charged his fellow board members with violating Vermont’s Open Meeting Law when it elected his replacement.
In a memo drafted this week, Nick Clark, who served as chair from the end of 2019 until earlier this month, included excerpts from messages in which board members deliberated about replacing Clark as chair, a discussion that should have taken place in an open meeting, Clark said.
“It is abundantly clear that there was an intention to avoid having these deliberations in public session, to decide on a course of action before the meeting began, and to develop a deceptive cover story should anyone ‘be curious,’ ” Clark wrote in the memo to his board colleagues, which he also sent to the Valley News.
Board Chair Sharon Harkay and board member Steven Tofel said they were trying to spare Clark’s feelings in arranging the vote in advance. In emails, Tofel and board member Mary Bryant agreed on a narrative that Clark was stepping down as chair to spend more time on his business.
Clark also asserted seven additional open meeting law violations, including an email exchange among board members about selling a property in Post Mills that had been proposed as a site for affordable housing. On the advice of the town’s attorney, the board “cured” some of those violations by reading the emails into the record at the board’s March 15 meeting.
Transparency has been an ongoing issue in Thetford, and Clark said in an interview that he has had to enforce the open meeting law’s provisions on a weekly basis over the past year. Some of his fellow board members feel his enforcement has been inconsistent, that many of the messages to which he objected did not run afoul of the law and that Clark’s current actions are obstructing the board’s work.
“I truly believe that everybody on our board has the best of intentions,” Harkay said in an interview. “Nobody’s trying to hide anything from the public. We just have to try and do better.”
To that end, Harkay has scheduled a meeting for the board on April 7 with the town’s lawyer, Brian Monaghan, to go over the open meeting law.
And board members are signed up for workshops with the Vermont League of Cities and Towns (VLCT), including a session on the open meeting law.
Clark is taking a wait-and-see approach. “In my mind, they’re still not understanding the open meeting law and the intent of the open meeting law,” he said in an interview.
Thetford voters elected three new members of the town’s five-member Selectboard last March: Tofel, Harkay and Mary Bryant. Ordinarily, the freshly elected members would have gone to the VLCT’s annual training last March to learn the ways of town government, including open meeting law.
The pandemic prevented that, and forced them to hold meetings remotely. They also deployed email as a communication tool.
A VLCT fact sheet about the open meeting law gives an expansive definition of a meeting. It can include a phone call or an email thread if a quorum of a board participates. “If a conversation occurs over a period of time (for instance in a string of emails) that conversation may still amount to a ‘meeting’ under the Law,” the fact sheet says. “This is why public bodies should generally avoid the use of group emails.”
Board members can communicate outside meetings, so long as they restrict their communications to meeting schedules, agendas and materials to be discussed at upcoming meetings, the fact sheet says. Discussions of substance, however, are forbidden.
The problem facing the Thetford Selectboard appears to lie with how members use email and a personality clash between Clark and other board members.
“We’ve all become too casual with email,” Li Shen, the longest-serving member at three years, said in an interview. “It’s something we do without thinking.” She agreed with Clark’s assessment that the new board members often used email in ways that violated the open meeting law.
Clark cited choosing the new chair as an example.
“Anything that is the business of a body should be discussed in an open meeting,” he said. “Electing a chair is part of the business of the body.”
Clark was elected chair after the abrupt resignation of Stuart Rogers, who charged three board members, including Clark and Shen, with violating the open meeting law. The discussion about who would succeed Rogers happened in an open session on Dec. 30, 2019, according to minutes of the meeting.
After the new board members were elected, Clark said, he felt he had to enforce the open meeting law. His efforts came to grate on some of his fellow board members.
“I don’t want to be a bad guy,” Clark said. “I don’t want to be an enforcer, but I think it’s incredibly important for our town government to be transparent.”
Shen pointed out that Clark is “two generations younger than everybody else (on the board). He has a different way of communicating.” She also noted in one of the emails about who should be chair that he had brought forward many of the board’s more innovative ideas.
Harkay praised Clark’s smarts, energy and generosity, but said that at times his emails went too far in chiding other board members for their transgressions.
Harkay lobbied for Shen to be the next chair, but she accepted when Shen refused, in part because she feels she has the skills to be more inclusive.
The past year has been a strain on the board. Former Selectboard member Mike Pomeroy died in June 2020 at age 52, following a period of declining health.
The Selectboard has struggled with several issues recently, including the pandemic, which shuttered the town offices; a proposed cellphone tower; the Post Mills housing proposal; a bond for work on Route 132; the brief suspension of the town’s police chief, Mike Evans; and a revolving door in the town manager’s office, which has had four occupants since Thetford adopted the town manager form of government in 2019. (Town Manager Bryan Gazda started work on Feb. 1.)
As chair, Clark said he clashed with Harkay and other board members as he tried to keep things on track. A chair’s role is to maintain order, he said.
“It felt like, to me, we would get out of control,” he said.
Perhaps as a result, other board members felt controlled. Clark often monopolized meetings, responding to every point someone might bring up, Harkay said. Meetings regularly dragged until 11 p.m. At one point, Harkay walked out of a rare in-person meeting rather than let her frustration boil over.
The next several weeks could determine whether the Selectboard can put their struggles behind them. Harkay said that on the advice of the town’s attorney the board will have to cure four of the open meeting law violations Clark brought up.
She’d also like to see the board work together more effectively, to disagree more pleasantly, to discuss at meetings what they might research and bring to a subsequent meeting, and to be more collegial.
“Our perspectives are different enough; if we listen to each other … I think we can come up with the best solutions for our town,” Harkay said.
For her part, Shen had a suggestion: “I think we need to have agreement that we’re just not going to email at all.”
Alex Hanson can be reached at ahanson@vnews.com or 603-727-3207.
Correction
While Sharon Harkay supported removing Nick Clark as chairman of the Thetford Selectboard earlier this month, she was not involved in emails shaping a narrative that Clark was stepping down to spend more time on his business. Also, Harkay was elected to the Selectboard in March 2020. An earlier version of this story was incorrect on those points.
