HALIFAX — A group of 41 residents dropped a lawsuit against the town related to the Select Board’s handling of a resignation of a board member, with their attorney citing costs and consequences to continuing the litigation.
Bob Fisher, the attorney representing the town in the litigation, said the town is pleased with the dismissal but declined to comment further. The parties signed a stipulation in Windham Superior Court, Civil Division last month dismissing the complaint without prejudice to all counts and parties.
In an op-ed in The Commons, attorney Cara Cheyette said the plaintiffs 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,’” she wrote, describing how board members Lewis Sumner and Mitchell Green negotiated in late 2019 with board member and town road commissioner Brad Rafus to buy 10 acres of his property to establish a gravel pit. “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 board defended the purchase as being a way to potentially save taxpayers money. But concerns about due diligence were raised by residents regarding the quantity or quality of gravel and what permitting may be necessary.
The town paid Rafus a $5,000 cash deposit while such matters were being explored.
“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,” Cheyette wrote. “Meanwhile, a preliminary engineering study suggested that gravel from the site might be suitable only for washouts or road bases, not for road topping.”
Cheyette recalled about 80 residents signing a petition in May demanding a special Town Meeting be warned to vote on the deal.
“On the eve of the Select Board 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,” Cheyette wrote. “Thus, the deal died a silent death. This seemed like the right result, but it was one that provided no accountability.”
Plaintiffs questioned whether the deal violated the town’s ethics policy regarding conflicts of interest. The Vermont Attorney General’s Office found the allegations raised by the plaintiffs “very concerning” but it has no enforcement mechanism for select board member conduct, according to correspondence shared with the Reformer.
The only way to hold the board accountable is through the political process, Cheyette wrote. She noted how a path for that opened when Rafus resigned in June after citing threats related to the deal, before rescinding the resignation at a later meeting.
“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,” Cheyette wrote, adding that the board didn’t post the vacancy, appoint someone to the position nor act on a new petition from about 50 voters who called for such action.
The board said it was not obligated to do so because the resignation hadn’t come in writing. That led to the lawsuit calling for a declaratory judgement.
Plaintiffs wanted the town to acknowledge it violated and needed to comply with the law, Cheyette wrote.
“The suit wasn’t about money, nor did it prescribe a particular outcome,” she wrote. “It was about process and accountability, the very things the public was denied during Gravelgate.”
Cheyette said an order from Judge Katherine Hayes agreed with the plaintiffs that state law doesn’t require resignations in writing nor do they need to be “accepted,” then the plaintiffs spent hundreds of dollars to produce a transcript from the town’s audio of the meeting where Rafus resigned to prove what he had 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,” Cheyette wrote. “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.”
Cheyette raised issue with Sumner and Green using tax dollars for legal expenses in supporting what she called “Rafus’s illegitimate return to the board.”
“Judge Hayes refused to address that argument, however,” Cheyette wrote. “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.”
Cheyette said on Nov. 30, the plaintiffs offered to settle the suit if the town would acknowledge the vacancy and expedite an appointment process — appointing Rafus if they wanted — but the board 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,” Cheyette wrote. “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.”
Cheyette said the legal expenses of continuing the case would affect Halifax taxpayers and create more divisions between neighbors, so the plaintiffs voluntarily dismissed the complaint.
“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,” she wrote. “And I was grateful the plaintiffs understood that pressing forward had costs and consequences for me, as well.”
Cheyette said she agreed to take the case pro bono because she believes that public officials shouldn’t be allow to “act with impunity” and her town deserves leaders whose ability to act in the public’s interest isn’t “clouded by their desire to hold onto their positions of power.”
She also worried that the burden of continuing to fight the case could negatively affect her livelihood and work as an independent contractor appointed to represent indigent Massachusetts residents on appeal in cases involving constitutional rights.
Her op-ed calls for Halifax voters to run for office or support new candidates, insist on an independent audit of the town’s financials, push for an ethics ordinance in town, be open to new debates on having a five-person board, and raise concerns about whether one person should have authority on both town and road budgets.