DALTON, Mass. — The Select Board on Tuesday voted to delay any action on setting a special election to fill its vacant seat until the town confirms that proper legal procedures were followed.

 

The board was shown a citizen petition with 237 signatures from residents calling for a special election and an election timeline created by Town Clerk Heather Hunt based on office activity levels.

 

Hunt recommended having the special election no earlier than Jan. 27, Town Manager Thomas Hutcheson said. Hunt was not present during the meeting. 

 

An election should not be scheduled too early in January because the office will be busy with the census and dog license renewals, he said. 

 

Before calling a special election, the board members wanted to consult the town attorney because they were concerned about whether they were acting in full compliance with state laws. 

 

The decision was passed unanimously among present board members; Vice Chair Dan Esko was absent.

 

"In my opinion, everything up until this point is of questionable legalities, and that's why, at the meeting in September, I suggested that we consult with the town attorney before we do anything based on what's happened here," member John Boyle said.

 

"I mean, what could happen if you ignore these chapters and sub-chapters in Massachusetts General law and go and call an election without actually following all the steps — the election could be contested by a citizen in court and ruled invalid." 

 

When contacted Wednesday, Hunt said she wished she had attended the meeting because she could have clarified board members' confusion. 

 

On the day of the meeting, Hunt stated that she had spoken to Hutcheson several times to inquire if he would like her to attend. He declined, especially considering how busy the clerk's office has been given the presidential election and now being randomly being selected for a state post-election audit.  

 

The state post-election audit is a lottery in which only 3 percent of precincts are selected. 

 

"I really wish I was there because I feel like they had some information that was not correct, and I feel like it would have been helpful for me to provide them with correct information. Whether or not it would have changed the outcome, I doubt. I doubt that very much," Hunt said. 

 

"I think the outcome was going to be the outcome either way, but I could have provided them with some details that, for some reason, they apparently didn't have." 

 

During the meeting, Boyle presented several reasons that calling for a special election would go against state laws and could contested by a citizen in court and ruled invalid. 

 

One reason was that the board never received any certified documentation or resignation letter regarding the Select Board vacancy. 

 

Joseph Diver had announced that he would be stepping down from the board effective Oct 1 during a Select Board meeting in September. He resigned from his seat via an email he sent to Chair Robert Bishop, Hutcheson, and Hunt on Sept. 9 

 

Although Bishop obtained the email, he and Boyle claimed in a follow-up that they had not received a certified letter that had been notarized. 

 

This type of documentation is state law, Boyle said, citing a section of Chapter 41 Section 10 which reads:

 

"If there is a resignation of a town officer creating a vacancy at some later time certain, and such resignation is filed with the town clerk in accordance with the provisions of section one hundred and nine, said town clerk shall certify a vacancy shall occur at the later time certain and the board of selectmen may call a special election …"

 

Hunt said she was surprised by the board's confusion as to whether Diver officially resigned, explaining that she received his letter of resignation in September, which they printed, date-stamped, filed, and forwarded to the board chair and vice chair. 

 

"Joe Diver actually announced his resignation at a Select Board meeting. So, I took for granted that everybody knew that. Joe did everything by the book … if I was there in attendance, I certainly would have given that information to them again," she said.

 

"It wouldn't have been the first time we gave them that information, but we would have made sure that everybody felt comfortable with the fact that [Diver] did resign as of Oct. 1. 

 

Boyle also questioned the validity of the citizen petition, stating that the process was not properly followed. He claimed that the petition should have been presented to the board and then given to the town clerk for certification. 

 

However, Robert Collins, who previously ran for a seat on the Select Board and now serves on the Planning Board, took out the petition from the town clerk on Oct. 2. 

 

Boyle again cited a section of Chapter 41 Section 10 which reads:

 

"If there is a failure to elect or a vacancy occurs in the office of selectmen, the remaining selectmen or selectman may call a special election to fill the vacancy and shall call such election upon the request in writing of two hundred registered voters of the town, or twenty percent of the total number of registered voters of the town, whichever number is the lesser; provided, that such request if filed with them or him not less than one hundred days prior to the date of the next annual election." 

 

Boyle emphasized that the law states the request needs to be presented to "them," which refers to the Select Board. This was not done, he said. 

 

Collins worked with Thomas Irwin and several other supporting town members to gather signatures for his petition, which garnered 237 signatures. 

 

After being submitted to the town clerk on Oct. 16, the town clerk's office certified the signatures. 

 

On Oct. 17, Hunt said she informed board members that the petition had 223 certified signatures. 

 

Collins followed the proper procedure, Hunt said.

 

In Massachusetts, the proper procedure requires the petition to be returned to the clerk's office for certification of signatures so that the clerk can certify that the signers are Dalton residents and registered voters.

 

The petition has to be submitted to the clerk's office because they have the state computers which allow them to certify a citizens petition, she said. 

 

"I was surprised. I mean, those are pretty basic things, so I was a little shocked when I saw it this morning that those two, what I would have guessed to be clear to everybody wasn't, but I think they're clear on it now," Hunt said. 

 

In a follow-up, Collins expressed his disappointment with the board's decision, describing it as a "travesty" and the " impediment to democracy" he has seen in the town in a long time.

 

"What is it that that Select Board is trying to hide that they don't want anybody else new in their sandbox," Collins said.