Officials and Residents to collide in court over Town Meeting’s close quarters

Correction: The original version of this story assumed the unidentified Town Planner described as present in a meeting Friday was Christopher Winters, Chair of the Planning Board. The Williamstown Town Planner in question is Andrew Groff, whose current title is Director of Community Development.

WILLIAMSTOWN — While most temperatures in Williamstown are holding steady at 98.6ºF, tempers continue to climb over whether or not to postpone the upcoming town meeting. On social media, by e-mail, and now via a complaint filed in court, opinions are colliding about the safety and good sense of packing residents into the Williamstown Elementary School Gymnasium this evening at a time when COVID transmission is spiking throughout the area.

An apparent misreading of Massachusetts General Laws by the town moderator and select board seems not to be helping matters.

Town resident, Janice Loux, filed a motion Monday in Berkshire Superior Court seeking a temporary restraining order against holding the annual town meeting in the Williamstown Elementary School gymnasium Tuesday, May 17 at 7:00 p.m.

The motion for a temporary restraining order cites health concerns given the increasing cases of COVID-19. 

“We are hoping,” Loux said in a statement, “for a ruling that will eliminate the need for anyone to show up to the meeting in order to vote on a change of venue,” referring to an effort underway to propose this idea as the first order of business at the May 17 town meeting.

Although the case numbers in Williamstown seem to show a decrease in COVID infections over the last few days, all other cities and towns in the Berkshires have seen a rise in cases over the last 14 days, amounting to a cumulative 57 percent increase across the county. Many factors can explain temporary spikes or dips in transmission rates that later adjust the numbers to more accurately reflect the spread of the virus.

The subject of this apparent decrease in positive test results was, according to Loux, the subject of correspondence she exchanged on May 9 with Jeff Kennedy, Health Inspector in Williamstown. Loux posted text from the communication she describes on the local Facebook group “Williamstown Issues and Info.” The text indicates that she asked what guidance Kennedy could or would provide the town concerning the upcoming town meeting. She provided a response she says he offered: 

Good afternoon Ms. Loux:

“There is no mask wearing requirement at the State or local level at this time.  The Board of Health encourages people to vaccinate and receive booster shots if they haven’t already. Masking (or not masking) would be an individual decision based upon a person’s health history and personal preference (as well as that of close friends and family.)

“I have also encouraged the Town Moderator to ensure that the meeting area has as much ventilation as feasible for that location.”

A meeting held Friday, May 13 between the Town Moderator, Adam Filson; Town Clerk Nicole Beverly; Select Board member Andrew Hogeland; Interim Town Manager Charles Blanchard; and the “town planner” (likely Planning Board Chair, Chris Winters) to discuss the question. The resulting decision provided by Filson reads, in part, as follows:

“The Town Moderator, Select Board Chair, Interim Town Manager, Town Clerk, and Town Planner met Friday afternoon (May 13th) after hearing resident concerns about the Town Meeting venue.  After further discussion with the Board of Health and a review of the current MA Department of Public Health (DPH) data, the historical attendance data, and venue capacity, continuing with Town Meeting as posted on Tuesday, May 17th, at the Williamstown Elementary School gymnasium is the recommended course of action.

Any motion to reschedule or relocate may be deliberated at Town Meeting.  Only Town Meeting can vote to change location, so any person wishing to vote on that question should try to attend. There are currently fewer than 16 non-Williams College student COVID cases in Williamstown. Residents are strongly recommended to follow the official public health guidance from the Centers for Disease Control and Prevention,  DPH, and Williamstown Board of Health and wear a proper-fitting mask over the nose and mouth at Town Meeting.”

Williams College, located in the center of town, has reported 76 positive student COVID test results over the past seven days representing a 2.68 percent increase.

Nicole Beverly, Town Clerk explained that at issue, in particular, was the Town Meeting warrant.

“The issue is that it has already been posted” Beverly explained. The warrant has been posted, so in that regard, the only option is to attend on Tuesday. And there is that possibility of adjournment.”

Speaking to The Greylock Glass by phone Monday evening, Filson stated that the fact that the State of Emergency declared by Governor Charlie Baker had be rescinded prevented local officials to alter the meeting time or location as they were able previously.

“A statute went into effect,” said Filson, “that allowed the Select Board or the Moderator to move a meeting during a state of emergency unilaterally without having to open the meeting, so that was available the past two years. But the state of emergency expired June 15th, 2021, so the ability to this for the Select Board and the moderator to unilaterally change a posted meeting on a meeting that’s already posted is not available at the moment because of the expiration of the state of emergency.”

According to Massachusetts General Laws, Part I,  Title VII,  Chapter 39, Section 10A (relating specifically to recession and continuation of town meetings), the moderator does, in fact, have the authority to postpone the Town Meeting at a moment’s notice.

Section 10A. (a) Notwithstanding any general or special law, charter provision or by-law to the contrary, during and for a period of 5 days after the termination of any weather-related, public safety or public health emergency, the town moderator or person designated to perform the duties of town moderator may, in consultation with local public safety or public health officials and the board of selectmen, recess and continue a town meeting previously called pursuant to a warrant issued pursuant to section 10 to a time, date and place certain; provided, however, that any such recess and continuance period shall not exceed 30 days.

The part that may have tripped up town officials is the next paragraph, which prescribes limits on towns’ authority to postpone their annual meetings beyond 30 days:

The moderator or person designated to perform the duties of town moderator may renew the declaration of recess and continuance period for up to 30 days at a time but not more than 30 days following the date of rescission of a state of emergency declared by the governor. 

In other words, the first 30-day postponement is within the town’s discretion — mostly. And while the General Laws indicate that lead time is important in giving townsfolk notice of the change, the Commonwealth is uncharacteristically generous and vague about just how much.

The moderator need not appear at the place of the town meeting to announce a declaration of recess and continuance. The moderator shall announce the declaration of recess and continuance as far in advance of the town meeting being continued as is practicable.

Here’s that “mostly has the authority” caveat, though. Towns can’t just postpone their meetings willy-nilly. They still have to answer to Auntie Massachusetts.

(d) Within 10 days after the initial declaration of recess and continuance of a town meeting pursuant to this section, a local public safety or public health official designated by the board of selectmen shall submit a report to the attorney general providing the justification for the declaration.

Of course, any decision to delay the Town Meeting will necessarily hinge on whether or not the designated officials deem the current state of play with the virus to be a significant public health hazard. Public health and safety responses are always tricky. By the time officials know that a situation has devolved into an genuine emergency, some residents have already suffered its effects. In fact, the intensity of the crisis is generally only understood specifically because enough people have fallen victim.

Loux says she feels frustrated that the past two years of the pandemic haven’t resulted in increased levels of concern for others.

“My reaction,” she said, “to any pushback is that we need to have more compassion for folks who have certain disabilities or are immunocompromised. This is neither democratic nor fair. I think the that town moderator needs to have more compassion. I’m shocked that I have to gio to this point to get some fairness around this town meeting.”

Both Select Board Chair Andrew Hogeland and Planning Board member, Roger Lawrence, engineered a possible workaround with the suggestion that people show up at the Town Meeting and immediately call for a procedural point of order, after which the gathered townsfolk could vote on a motion to postpone the meeting to a later date at a different venue.

Loux is skeptical about the significance of the results.

“I think that it’s not guaranteed that the meeting will be postponed,” Loux lamented. This is a very short sighted way of manipulating what’s happening. I’m very confused as to why we couldn’t just work it out so that the meeting date or venue could have been changed. Where there’s a will there’s a way.”

And sometimes, where there’s enough will, there’s a temporary restraining order. Loux procured the services of local attorney Steve Dew, who received confirmation of his electronic filing of Loux’s complaint just after 9:00 a.m. Tuesday. Now it will be up to a Superior Court judge to determine whether or not the meeting can be postponed. If the judge sides against Loux, the only other choice will be to encourage people to take their chances and insert themselves into the thick of a fairly good sized crowd in a fairly small space. 

Filson explained that he didn’t see cause for undue concern. “We’re following the public officials,” he said. “Agencies who have jurisdiction over the public health of this town. We’re following their guidance. And the CDC and Board of Health guidance has not changed. And the Board of Health met today and still hasn’t changed. Their recommendation is that you wear a mask indoors, but it’s a recommendation, and it’s not a mandate. So the Board of Health did not issue a mask mandate.”

Williamstown resident and four-term Massachusetts State Representative, Sherwood Guernsey, sent out a letter by e-mail to a large swath of the town, urging people to sign a petition to postpone the Town Meeting.

“You may have heard that there will be a motion to postpone the upcoming Town Meeting (“TM”) to a date in June,” his message reads. “To be approved, the motion has to be voted on at the meeting.

“The TM is presently scheduled for tomorrow night at 7:00 pm, at the Williamstown Elementary School gymnasium. Please be there, to vote on this motion as there is a lot of concern about the spread of covid in an enclosed space…and then we can leave.

Below is a link to a Petition to express your support for the Postponement now.  Please fill it out (it is very quick), and click ‘Submit”.

Here’s the link: https://forms.gle/Xp3QBfwyCY2cAiPd6

Dew says he doesn’t believe that making people cram into a Town Meeting space so that they can vote to walk out is any kind of solution.

“We filed the motion,” explained Dew, “because COVID 19 is still a very grave threat to the health of the populace of Williamstown and the rest of the country, the state, and the county. Berkshire County is categorized as a high transmission zone for the virus. And that’s been true for many, many weeks. All of the counties in New York, Vermont and Massachusetts are classified in the high transmission category, which is the highest category. In other words, the virus hasn’t gone away as much as we wish it might have had.

“And this,” he continued, “is why we decided to go forward with this, even though it’s a long shot, because we believe in vindicating the rights of traditionally underrepresented, vulnerable people like those with compromised immune systems; health concerns, like my client in this case has diabetes and other conditions that place people at very high risk of either severe illness or mortality. And we thought it was important to get this out there and on the public record and let people know that there are still people fighting for immunocompromised, vulnerable people who simply cannot afford to attend an event like the Williamstown town meeting where there is no masking or social distancing requirement in a poorly ventilated, small indoor space.”

Dew is scheduled to make Loux’s case at 2:00 p.m. in Berkshire Superior Court.

“If successful, I personally know many people who will be relieved that they don’t have to choose between democracy and COVID,” she said.