HALIFAX — In August, 41 Halifax residents sued their town concerning its handling of the resignation of a Selectboard member. Last week, they voluntarily dismissed their complaint.
This story of “Resignationgate” - why the plaintiffs sued and why they dismissed their suit - can't be told without first telling the story of “Gravelgate.”
In late 2019, two Selectboard members - Lewis Sumner and Mitch Green - negotiated with the third Selectboard member, Brad Rafus, to buy 10 acres of his property to establish a gravel pit.
In addition to being an elected official, Rafus held the appointed position of road commissioner and was employed as the road supervisor.
Sumner and Green negotiated the deal in a way that maximized its secrecy, by negotiating with Rafus and his wife in executive session and burying the $100,000 cost in the highway materials budget.
The Selectboard arrived at the purchase price without any due diligence: before conducting any engineering studies to ascertain the quantity or quality of recoverable gravel, before determining whether an Act 250 permit would be necessary, before petitioning the Planning Commission and the Zoning Board for a permit to subdivide the property or operate a quarry, and before estimating operation and reclamation costs.
The Selectboard paid Rafus a non-refundable $5,000 cash deposit and agreed that the costs of all studies and permits would be borne by the taxpayers. The board maintained that secrecy and the non-refundable deposit were necessary to avoid another buyer swooping in - this despite Rafus's earlier declaration that no one would buy his land because of its proximity to the town's now-closed, perfluorooctanoic-acid-contaminated landfill.
Meanwhile, a preliminary engineering study suggested that gravel from the site might be suitable only for washouts or road bases, not for road topping.
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The deal came to public attention after Town Meeting, and it sparked public outcry. In May, some 80 residents signed a citizen petition demanding that a Special Town Meeting be warned to vote on the deal.
On the eve of the Selectboard having to accede to that demand, Rafus announced that he and his wife were unwilling to extend the date of closing to permit further studies or a vote.
Thus, the deal died a silent death.
This seemed like the right result, but it was one that provided no accountability.
• Rafus retained the $5,000 deposit while taxpayers shouldered the engineering and legal costs of the failed deal.
• The deal violated the Halifax ethics policy - even the Attorney General's Office commented, in response to a formal complaint, that the allegations of unethical conduct were “deeply troubling.”
The AG's office doesn't have jurisdiction over this kind of conduct, however, and with no enforcement mechanism, the town's policy depends on public officials policing their own conduct.
• The deal violated the spirit of the Open Meeting Law but not the letter of the law, so no open meeting violation could have led to any enforcement action.
The law permits real estate transactions to be conducted in executive session. While the Selectboard appears to have taken advantage of that loophole to further an unethical plan, it was just unseemly, not unlawful.
The only way to hold the Selectboard accountable was, consequently, through the political process, and that was going to take time. Green is up for re-election in 2021; Rafus, in 2022; Sumner, in 2023.
And then the window of opportunity for some measure of accountability through the political process opened unexpectedly early.
On June 26, immediately after he announced that the gravel deal was off, Rafus claimed the deal had resulted in threats, he described people as “ridiculous,” and he concluded, “From this point forward, I resign my position on the Selectboard.”
State law requires that vacancies be posted within 10 days, that vacancies be filled “forthwith” by appointment, and that residents be able to petition for a Special Town Meeting to fill those vacancies by election.
The Selectboard didn't post the vacancy, it didn't appoint anyone, and it refused to act on this new citizen petition, signed by about 50 registered voters.
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Several weeks after the citizen petition was presented to the Selectboard - i.e., nearly a full month after Rafus announced his resignation - he showed up at a board meeting and rescinded his resignation, claiming that it had been “informal,” “hasty,” and made “under duress.”
Town counsel was waiting in the wings there, as he had been at meetings about the gravel pit, ready to fend off public outcry. He said Rafus had a right to rescind his resignation at any time because he hadn't put it in writing and because the board hadn't “accepted” it. According to town counsel, there was no vacancy and, hence, the board was under no obligation to take the actions laid out under state law.
Gravelgate had turned into Resignationgate.
But where Gravelgate involved the violation of unenforceable policies and norms, Resignationgate involved the violation of state law.
And so, the 41 plaintiffs sued.
The suit was a declaratory judgment action; that is, it sought an order - a “declaration” - that the town violated and needed to comply with the law. The suit wasn't about money, nor did it prescribe a particular outcome. It was about process and accountability, the very things the public was denied during Gravelgate.
By order dated Oct. 16, Windham Superior Court Judge Katherine Hayes agreed that state law doesn't require that resignations be in writing and it doesn't require that a resignation be “accepted.” The Selectboard and town counsel were wrong.
That should have been the end of the matter.
At that juncture, the board should have posted the vacancy and appointed someone - Rafus, if he wanted to be appointed and if his colleagues on the Board wanted him to stay.
And they should have warned a Special Town Meeting at which Halifax voters could elect someone for the balance of Rafus's term - Rafus, if he wanted to run and if the voters wanted him to stay. Again, the case was about process, not about dictating an outcome.
That wasn't, however, the end of the matter.
Why? Because the Selectboard, through town counsel, denied that Rafus said what he said at the June 26 meeting and Judge Hayes was willing to indulge the town's denial of the contents of public records.
The plaintiffs spent hundreds of dollars producing a transcript from the town's own audio of its own public official speaking at a public meeting to prove that Rafus said what he said. The town then conceded that, yes, Rafus uttered those words - but, it maintained, he didn't mean what he said and even if he uttered those words and meant them, he did so only because he had been “attacked” by the plaintiffs.
Those were, in the plaintiffs' view - and, apparently, in the view of many others in town - baseless allegations. More importantly, however, they were irrelevant to the legal issues presented by the case.
As Judge Hayes had ruled, oral resignations are valid without any need for them to be in writing, and resignations are valid without having to wait for them to be “accepted” by the municipal authority.
On June 26, Rafus declared that he had resigned “from this point forward” - nothing ambiguous or conditional about it - and he walked away from the Selectboard table. The board's obligation to follow the law by way of notice, appointment, and - if demanded by the voters - a Special Town Meeting was established once he uttered these unconditional words of resignation.
Rafus's right to challenge the board's actions was a completely separate matter.
If Rafus believed he had been unfairly pressured to resign, he could have filed a legal claim against the town to regain his seat. He could have put his own money where his mouth was, hired a lawyer, and proved that he was forced out of office.
Instead, Sumner and Green used town counsel's services at taxpayer expense to support Rafus's illegitimate return to the board. Closing ranks to protect Rafus's interest and protect this particular Selectboard's lock on control of the town trumped the taxpayers' rights to due process, accountability, and transparency. Resignationgate was mirroring Gravelgate.
Judge Hayes refused to address that argument, however. She ruled that what Rafus said, what he meant by what he said, and why he said what he said were open and disputed questions that prevented her from ruling on the ultimate legal question about the town's obligations.
The judge placed the onus on the plaintiffs to use the legal discovery process to uncover the truth of Rafus's intentions and motivations.
And rather than narrowing the issue to Rafus's intent and motivation, she went so far as to say she was waiting for the plaintiffs to prove such undeniable facts as to whether Halifax was even a municipality and whether Sumner and Green were even members of the board.
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On Nov. 30, the plaintiffs offered to settle the suit on the following terms.
The plaintiffs would dismiss the complaint and withdraw their support for the vacancy petition if the board would acknowledge the vacancy and expedite an appointment process (appointing Rafus, if they wished). This would simply trigger a requirement that he run for the final year of his current term at Town Meeting 2021.
The Selectboard declined the offer.
The plaintiffs were prepared to seek a ruling on the legal question from the Vermont Supreme Court and felt strongly about their chances there. But Judge Hayes made clear that she was not going to “pause” the legal discovery process and, meanwhile, she expected the parties to mediate their dispute, as well - a process that would likely cost several thousands of dollars.
Meanwhile, the town's unwillingness to settle confirmed that the board intended to spare no legal expense to protect Rafus from having to run for his seat so soon after the gravel pit fiasco. And whose money was going to be footing all of these legal expenses? The “deep pockets” of Halifax taxpayers.
Moreover, exactly how were the plaintiffs supposed to disprove what Rafus meant when he uttered those words or whether he actually felt pressured to resign - by deposing his family, friends and co-workers? By subpoena-ing his phone records to see if he sent texts or emails to friends or family about his intentions? That's ugly stuff that would unnecessarily pit neighbor against neighbor.
And so, the plaintiffs agreed to voluntarily dismiss the complaint.
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I was grateful the plaintiffs recognized that pressing forward had costs and consequences for our town and our neighbors - consequences that outweighed the satisfaction of an ultimately righteous victory.
And I was grateful the plaintiffs understood that pressing forward had costs and consequences for me, as well.
I agreed to take the case pro bono. I did so because I believe public officials shouldn't be permitted to act with impunity and that our town - my town - deserved leaders whose ability to act in the public good wasn't clouded by their desire to hold onto their positions of power.
But the judge and the town's approach to the case was forcing us down a path that threatened to push me beyond my capacity. I'm an independent contractor appointed to represent indigent Massachusetts residents on appeal in cases that implicate constitutional rights - criminal convictions, state-involved child welfare cases, involuntary civil commitments. I'm not a civil litigator; I don't have an office or staff.
In addition to being beyond the means of the plaintiffs and a burden to all Halifax taxpayers, the prospect of needless costly civil discovery and fruitless costly mediation threatened to put my indigent clients' cases and my own livelihood at risk.
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At the end of the day, we had a favorable ruling on the law, but change will only come at the ballot box. Here, then, is our collective clarion call to action for Halifax voters:
1. Run for office or support new candidates who credibly commit to bringing accountability and transparency back to town governance.
2. Insist on an independent audit of the town's books, something that hasn't happened in a decade and that the current board has resisted on financial grounds.
3. Support an effort to pass an ethics ordinance so that those who would engage in another Gravelgate won't get away scot-free.
4. Be open to fresh debate about having a five-person, rather than a three-person, board.
5. Raise concerns about whether one person should be permitted to exercise so much authority over budgeting and roads by being, at the same time, road commissioner, road foreman, and Selectboard member.