THIS AGENDA WAS POSTED IN ACCORDANCE WITH THE PROVISIONS OF MGL 30A §§18-25 AND APPROVED BY THE TOWN CLERK’S OFFICE ON: 9/28/2017 3:27:04 PM

Board of Health

Agenda

Tuesday, October 3, 2017

7:00 PM

Board of Selectmen Meeting Room

Town Hall, 101 Main St, Ashland, MA 01721

1. Call Meeting to Order - 7:00 p.m.

2. Citizen’s Participation

3. Michael Herbert to discuss finances– 7:15 p.m.

4. Fall Flu Clinic

5. Review of Open Meeting Law Complaint filed by Stephen Morgan on 9/19/2017 against Jon Fetherston regarding an email Jon sent to the Board of Health 9/18/2017.

6. Review of Open Meeting Law Complaint filed by Stephen Morgan on 9/19/2017 against the Board of Health regarding out of meeting communications on 8/24/2017.

7. Review of Open Meeting Law Complaint filed by Stephen Morgan on 9/25/2017 against the Board of Health regarding the response time of of the 8/31/2017 Open Meeting Law Complaint.

8. Consideration of Minutes: June 29, August 28, August 29, September 19, 2017.

9. Continuation of Discussion regarding Board Facilitation

10. Health Agent / Director’s Report: a. FY18 and FY19 Budget reviews b. Landfill update on gas permeation project c. Landfill Routine Testing - RFP sent out for the final FY18 period d. Sheffield Drive area, updates from DEP e. 2016 Food Report to MDPH f. Beaver issue off 220 West Union Street g. Need for additional personnel for food inspections, on call and routine workload h. Internal Projects / Tech Review: 128 Main Street; Multi Modal path through Town i. Food Establishment Updates: Shell and Dunkin' Donuts, 123 Union Street,

new openings: Murphy’s Tasty Treat

11. Next Agenda Items and Meeting Dates

Agenda subject to change.

September 27, 2017 Director Division of Open Government Office of the Attorney General One Ashburton Place Boston, MA 02108 RE: Open Meeting Law Complaints Town of Ashland Board of Health (“Board”) by Member Jon Fetherston Complainant: Stephen Morgan

Alleged Violation Date:9/18/17 Complaint Filing Date: 9/19/17

Dear Director: Reference is made to the above captioned matter. In that connection, I am Town Counsel to the Town of Ashland. The Town has received an Open Meeting Law Complaint from Stephen Morgan as noted above and attached as Exhibit A. Mr. Morgan alleges that the Board of Health, through one of its members, Jon Fetherston, has failed to comply with certain aspects of the Open Meeting Law by deliberating outside of a properly posted meeting through email communication. In reviewing this matter, I have read the email appended to Mr. Morgan’s Complaint. The Open Meeting Law is intended to “eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based.” Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 72 (1978). With certain exceptions, all meetings of a public body must be open to the public. A meeting is generally defined as “a deliberation by a public body with respect to any matter within the body’s jurisdiction.” A “deliberation” is defined as “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction; provided, however, that ‘deliberation’ shall not include the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.” G.L. c. 30A, § 18. Expression of an opinion on matters within the body’s jurisdiction to a quorum of a public body is a deliberation, even if no other public body member responds. See OML 2012-15; OML 2012-8; OML 2011-37. Here, the email dated September 18, 2017 contains the following communication:

The BOH voted that the missing meeting meetings be supplied by today. I have not seen.

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Judy/KG please provide before the BOH meeting scheduled for tomorrow. It has been 7 plus weeks for some of the missing minutes. Please note, I will follow the policies with the Ethics Commission and DA's office if not provided. Connolly Bus lot update: The bus lot sale closed on Friday and Connolly Bus is now the owner of the lot. There is no interest in meeting with abutters during the ZBA appeal process. I am told that the BOH can anticipate follow up from property owner over letters submitted by Judy

A request for documents to be provided for a meeting is one which falls in the ambit of scheduling information, i.e. the converse of distributing minutes is substantially the same as requesting that a board member supply minutes at a meeting. This is not a violation of the open meeting law. However, the statements regarding the pursuit of claims with the Ethic’s Commission or the District Attorney, as well as the “update” on Connolly Bus are violations. “If the Board member sending the message wished to convey the information therein to the other Board members, he should have presented that information to them during an open meeting.” OML 2012-73. The Board and Mr. Fetherston acknowledge the mistake and assure the Complainant and the Division of Open Government that board members will refrain from deliberating outside of meetings in the future. The email as appended to this response will be added to the minutes of the September 26, 2016 meeting. Based on the foregoing, the Town respectfully requests that this matter be dismissed without further action. Please feel free to contact me with any further questions. Sincerely, Katherine McNamara Feodoroff, Town Counsel Lisa L. Mead, Town Counsel Enclosures cc: Board of Health Mike Herbert, Town Manager Steve Morgan

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Exhibit A

September 27, 2017 Director Division of Open Government Office of the Attorney General One Ashburton Place Boston, MA 02108 RE: Open Meeting Law Complaints

Town of Ashland Board of Health (“Board”) by Members Jon Fetherston, Judith Margulies and Mary Mortenson

Complainant: Stephen Morgan Alleged Violation Date:8/24/17 Complaint Filing Date: 9/19/17

Dear Director: Reference is made to the above captioned matter. In that connection, I am Town Counsel to the Town of Ashland. The Town has received an Open Meeting Law Complaint from Stephen Morgan as noted above and attached as Exhibit A. Mr. Morgan alleges that the Board of Health, through three of its members, Jon Fetherston, Judith Margulies and Mary Mortenson, has failed to comply with certain aspects of the Open Meeting Law by deliberating outside of a properly posted meeting through email communications. In reviewing this matter, I have read the email chain appended to Mr. Morgan’s Complaint. The Open Meeting Law is intended to “eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based.” Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 72 (1978). With certain exceptions, all meetings of a public body must be open to the public. A meeting is generally defined as “a deliberation by a public body with respect to any matter within the body’s jurisdiction.” A “deliberation” is defined as “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction; provided, however, that ‘deliberation’ shall not include the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.” G.L. c. 30A, § 18. Expression of an opinion on matters within the body’s jurisdiction to a quorum of a public body is a deliberation, even if no other public body member responds. See OML 2012-15; OML 2012-8; OML 2011-37. Here, the email chain contains the following communications: (1) email from Jon Fetherston to the Board regarding meeting scheduling; (2) email from Judith Margulies to town counsel with a copy to the Board; (3) email from Judith Margulies to Stephen Morgan with a copy to the Town Clerk; (4) email from Mary Mortenson

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to Judith Margulies with a copy to Jon Fetherston; and (5) email from Judith Margulies to Stephen Morgan with a copy to the Town Clerk. Items (3) and (5) clearly do not implicate the Open Meeting Law as they do not constitute communications among a quorum. Items (1), (2) and (4) are discussed below. Email Item (1) The full text of this email states:

Looks like Conservation has the BOS meeting room already for Monday. How does KG do both? You are aware that Mary, Mark and myself are not available. So with Conservation already in BOS, that leaves the basement, so you will have to change the agenda and no WACA? The agenda seems to have an agenda….

This email is one concerning scheduling, and therefore, not a violation. Here, without expressing any sort of opinion, Mr. Fetherston discusses location of the meeting, people attending, and length of the agenda. This email does not constitute a violation of the Open Meeting Law. Email Item (2) The full text of this email states:

Hello Lisa, I continue to have concerns that email is being used by some for the expression of personal opinion. Mary and Jon continue to communicate with me back and forth making a quorum of three. Please assist if possible. -Judy

This email expresses Ms. Margulies’s personal opinion s to whether board members have violated the open meeting law. The attorney general has cautioned boards “that questions directed to a third party have the potential to convey the opinion of the public body member sending the email, [further recommending] that public body members avoid copying a quorum of the body’s members on email communications with third parties, and instead wait to update the public body on those communications during a meeting.” OML 2013-130. Therefore, this email constitutes a violation of the Open Meeting Law. The Board and Ms. Margulies acknowledge the mistake and assure the Complainant and the Division of Open Government that board members will refrain from deliberating outside of meetings in the future. The email as appended to this response will be added to the minutes of the September 26, 2016 meeting. Email Item (3) The full text of this email states:

This is a simple to solve problem send me the information or step down and allow someone that knows how to handle the meetings take over

Although this email lacks context, one can glean from the email that Ms. Mortenson is challenging the competence of the chair, a matter within the jurisdiction of the Board. Therefore, this email constitutes a violation of the Open Meeting Law. The Board and Ms. Mortenson acknowledge the mistake and assure the Complainant and the

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Division of Open Government that board members will refrain from deliberating outside of meetings in the future. The email as appended to this response will be added to the minutes of the September 26, 2016 meeting. Based on the foregoing, the Ashland Board of Health has taken remedial measures to correct its mistakes. The Town respectfully requests that this matter be dismissed without further action. Please feel free to contact me with any further questions. Sincerely, Katherine McNamara Feodoroff, Town Counsel Lisa L. Mead, Town Counsel Enclosures cc: Board of Health Mike Herbert, Town Manager Steve Morgan

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Exhibit A

October 4, 2017 Director Division of Open Government Office of the Attorney General One Ashburton Place Boston, MA 02108 RE: Open Meeting Law Complaints Town of Ashland Board of Health (“Board”) Complainant: Stephen Morgan

Alleged Violation Date: 9/13/17 Complaint Filing Date: 9/25/17

Dear Director: Reference is made to the above captioned matter. In that connection, I am Town Counsel to the Town of Ashland. The Town has received an Open Meeting Law Complaint from Stephen Morgan as noted above and attached as Exhibit A. Mr. Morgan alleges that the Board of Health has failed to comply with certain aspects of the Open Meeting Law by failing to respond to an Open Meeting Law complaint within the prescribed timeframe. The Open Meeting Law requires public bodies to respond to complaints within 14 business days. G.L. c. 30A, § 23. As alleged, the Board did not respond within said timeframe. As counsel, I take full responsibility for the delay. The reason for my nonresponse was that I had anticipated that this matter would be taken up for discussion at the prior meeting on September 19, 2017. However, the posting on the September 19, 2017 agenda was not sufficiently specific to address the issue. See Exhibit B. Consequently, I advised the Board to postpone discussion. However, in the meantime, I forgot to request an extension. The response has been filed. Based on the foregoing, the Ashland Board of Health has violated the Open Meeting Law. However, such violation was unintentional and due to my oversight. The Town respectfully requests that this matter be dismissed without further action. Please feel free to contact me with any further questions. Sincerely, Katherine McNamara Feodoroff, Town Counsel Lisa L. Mead, Town Counsel Enclosures cc: Board of Health Mike Herbert, Town Manager Steve Morgan

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Board of Health Meeting Minutes

September 19, 2017 – 7:00 P.M. Ashland Town Hall, 101 Main Street, Ashland, MA

Second Floor Meeting Room

Mary Mortensen, Chairperson Jon A. Fetherston, Member Ronald Etskovitz, Vice Chairman Judith Margulies, Member Koduvayur Narayana, Clerk Mark Oram, Agent/Director

Members Present: Mary Mortensen, Ron Etskovitz, Koduvayur Narayana, Jon Fetherston and Judith Margulies Others Present: Mark Oram, Health Agent / Director Laura Clifford, Administrative Secretary Enrique Arraya, resident Mark Dassoni, resident Call to Order and Chair’s Announcements Mrs. Mortensen called the meeting to order at 7:04 p.m. and stated that the meeting was being recorded by WACA-TV and was being audio recorded by Laura as well as Stephen Morgan. Ms. Margulies made a point of order, stating that Item #3 of the Agenda is lacking in detail. Citizen’s Participation Mark Dassoni congratulated Mary Mortensen as the new Chairperson. Steve Morgan found item 3 of the agenda to be lacking in detail and discussed his pending Open Meeting Law complaints and what he sees as inaction by the Board to change. Mrs. Mortensen noted that Town Counsel, Kate Feodoroff, has suggested the Board move all Open Meeting Law Complaints to the Tuesday, September 26, 2017 agenda, Attorney Feodoroff will attend this meeting. Mrs. Mortensen noted that the Board will also take up the Policies and Procedures discussion at the next meeting with Town Counsel. A discussion occurred between Mr. Fetherston and Mr. Morgan regarding the process, and the filing, of Open Meeting Law Complaints. A resident expressed his concerns regarding the Connolly Bus Parking lot. Mr. Fetherston explained that he was informed that Bus Connolly is now the owner of the lot, and that this matter is currently in the Appeals process. Mr. Oram stated he would go out with the Conservation Agent and inspect the lot for oil spills. Mr. Fetherston told the resident he should speak to the ZBA. Enrique Arraya also spoke to the Board about issues at Columbus Ave. The Board suggested the residents call the Police any time there is a problem, and to keep calling them. Mrs. Mortensen stated we will do whatever we can do to help, but must follow the rules.

Walter Hernandez, resident John Mihnos, resident Steve Morgan, resident

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Mr. Fetherston made a motion to take a five minute recess to move the room around. Mr. Narayana seconded the motion. The motion was approved 5-0. Mr. Fetherston made a motion to table all pending Open Meeting Law complaints, and the Policies and Procedures until next Tuesday’s, September 26th, meeting to review with Town Counsel at that time. Mr. Etskovitz seconded the motion. Ms. Margulies said this date does not work for her. The motion was approved 4-1 (Margulies opposed). Ms. Margulies is concerned with the fire limitations of the room. Review of July 11, 2017 Meeting Agenda Items to be re-discussed to resolve OML Complaint

Mr. Oram stated this is only a reiteration of the July 11th meeting as instructed by the Town Attorney. Mr. Oram read the minutes of the July 11th meeting which included summaries of discussions that occurred at that meeting. Ms. Margulies expressed her objection to this method, and does not believe this will satisfy the Open Meeting Law complaint. Mr. Oram noted that Town Counsel will be at the next meeting if there are any questions. Health Agent / Director’s Report: FY18 Budget, Revolving Fund – Update Mr. Oram reported that we are presently in good shape, in both the budget and revolving fund. Mr. Oram is hoping that over the next few months we can discuss priorities and get a budget ready. Mr. Fetherston volunteered to work on a needs analysis and will report to the Board, and will attend MAPC (Metrowest Area Planning Council) meetings where he will obtain information regarding staffing, budgets, grant proposals, projects of comparable towns’ public health departments. Mr. Narayana offered to work with him, Mr. Fetherston agreed. Mr. Fetherston made a motion that he will take the task of working with MAPC to develop information and financials for this Board and will work with KG on this project and will update the Board on a weekly basis, and will send emails to the Board, which they shall not respond to, only discuss in a public forum, with the caveat, that we have a budget proposal to take to May Town Meeting. Mr. Narayana seconded the motion. The motion was approved 5-0. Howe Street (former) Landfill updates and status of Landfill Routine Testing - RFP sent out for the final FY18 period, New RFP to be sent for FY19-FY22 Mr. Oram noted that a Request for Proposal was sent out for routine testing at the Howe Street (former) Landfill, this is for the remaining nine months of testing. Another RFP will be sent for an extended contract in January. Mr. Oram will send the Scope of Services to the Board. Request for irrigation well, Lot 3 Wilson Circle Mark asked that this item be put on the next agenda, and said plans will be provided to the Board prior to the meeting. Food Establishment Updates: Mr. Oram mentioned the manager of Hanto has updated his chokesaver, and explained that there was an isolated food poisoning complaint. Upon a follow up inspection, violations were noted. Mr. Oram suggested, as these are repetitive serious violations, the Board may want to have Hanto appear at an upcoming meeting. Board Members agreed to have Hanto appear at the next Board of Health meeting. Mr. Narayana discussed modifying the Food Permit, having online food applications, and the template of the food permit. Mr. Oram updated the Board on new establishment: Season’s Market, Shell and Dunkin’ Donuts will be opening soon; Santana’s Food Market is delayed; Murphy’s Tasty Treat is hoping to open in a few weeks. Mr. Oram told the Board the Corner Spot is a great way to try out a new business.

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Mr. Fetherston asked Mr. Narayana to contact Paul Carpenter in IT to inquire about the online food application and update the Board. Hydraulic Oil Spill, Bobcat Hill Road Mr. Oram updated the Board as to a hydraulic oil spill on Bobcat Hill Road, there was 10-15 gallons involved and it was cleaned up within a couple hours. Request from Management, - Free Cash by Town Manager Mr. Oram noted that Mr. Herbert has requested to be put on a future Board of Health agenda to discuss finances. Mr. Fetherston suggested we have him come to a meeting soon. Next Agenda Items, Meeting Dates The Board reviewed suggested items for future agendas. Mr. Fetherston noted there is a Rotary-sponsored Police of Chief meeting next Thursday September 28th, at 7:15 a.m. at the Hampton Inn in Natick regarding the Opiate Crisis. The Board discussed the missing meeting minutes from June 29, August 28th and August 29th. After discussion, Mr. Etskovitz volunteered to do the August 29th minutes. Adjourn Mr. Fetherston made a motion to adjourn, Mr. Etskovitz seconded the motion. The motion was approved. The meeting was adjourned at 8:24 p.m.

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ASHLAND BOARD OF HEALTH

DOCUMENTS REVIEWED AT THE 9/19/2017 MEETING

(All items stored in the Board of Health files unless otherwise noted)

1. Approved July 11th meeting minutes

2. FY18 Budget

3. Audio Recording of the meeting is available

9/28/2017 Fwd: Mediation Proposals - lclifford@ashlandmass.com - Town of Ashland, Massachusetts Mail

https://mail.google.com/mail/u/0/#search/drrbe1%40verizon.net/15ec433161ced21c 1/1

Hello Board Members,

Attached are proposals from 5 potential mediators/facilitators. I am sending this to each member individually so feel free toreply with any questions. As you can all see the time commitment and price vary widely. I have spoken to most of theindividuals but not in great depth. In general most mediators will speak with each of us individually, then as group. As youwill see the process varies per mediator. Some prefer to meet as a group multiple times while others speakindividually and then as a group. At some point though we will have to meet as a group and Kate will be able to answertechnical questions regarding confidentiality and OML issues. So that everyone is aware I am disclosing the source ofeach referral.

1. Steve Wofford from MWI (Kate Feodoroff)2. Loraine Della Porta from TMG (Kate Feodoroff)3. Scott Loring (Kate Feodoroff)4. Frederick George (Sandy Etskovitz)5. Don Greenstein (Judy Margulies)

All of the people I spoke with sounded great and they are all willing to work with us as for as modifying their proposals for ourspecific needs. They will work with us on cost, time constraints and modifying their typical individual process to meet ourwants/needs. They all seem to want to help us. Some are more optimistic than others as far as potential success of thisprocess. I want to thank Kate Feodoroff for all her effort and input regarding this process. She is wonderful to work with.

I am copying Michael Herbert for his input as regarding cost.

Thank you all for your patience. Judy will add this as an agenda item so that we may discuss when we can all meet.

Ron

cc: Kate Feodoroff Michael Herbert

Town of Ashland MASSACHUSETTS

The Town of Ashland

Office of the Board of Health

101 Main Street, 2nd Floor

Ashland, MA 01721

Site: Former Ashland/Howe Street Landfill

102 Howe Street

Ashland, MA 01721

Request for Bid for FY18 (October 1, 2017 – June 30, 2018)

SCOPE OF SERVICES REQUESTED

1. All Post-Closure field and sample activities will be conducted in accordance to the requirements described

within the Massachusetts Department of Environmental Protection (MassDEP) - Division of Solid Waste

Management’s Re: Ashland - Solid Waste/COR 102 Howe Street, Ashland Landfill FMF Number 39041 BWP

SW-22, Minor Modification Post-Closure Monitoring Plan Decision and Permit document (Transmittal No.

X267761), dated January 28, 2016.

2. The Contractor will provide field staff during the months of October 2017 and April 2018 to collect the

required samples at four (4) groundwater monitoring well (MW-1, MW-2, MW-2D, and MW-3) and three (3)

surface water monitoring (SW-UP, SW-MID, and SW-DWN) locations in accordance with 310 CMR

19.132(1)(h) 1,2 and 3 (including MEK, MIBK, Acetone, and 1,4-Dioxane), and field parameters (Dissolved

Oxygen, pH, Specific Conductance, and Temperature).

3. Prior to purging a minimum of three (3) well volumes and sample collection, The Contractor will measure and

record the static groundwater elevation and total depth at each groundwater monitoring well location.

4. All samples will be collected and subsequently transferred into laboratory provided glassware and submitted

in ice to a Massachusetts State Certified Laboratory under standard Chain of Custody (COC) procedures. The

laboratory turnaround time is approximately 7 to 10 business days.

5. Landfill Gas Migration Monitoring: As described within MassDEP Re: Ashland - Solid Waste Management /

COR Ashland Landfill Howe Street FMF#39041 Landfill Gas Assessment and Corrective Action

Requirements.

6. During October 2017, The Contractor will conduct a visual inspection of the landfill cap and property.

Observations made during this inspection will include, but shall not be limited to, the condition(s) of the

landfill cap structure, storm water drainage structures, passive landfill gas vents, groundwater monitoring well

locations, and Site security.

7. Please include a breakdown of monthly costs and any laboratory fees, as well as the total annual contract fee.

8. Upon receiving, laboratory results will be presented in a tabular format; field activities and said results shall

be summarized in a letter report. Per request, The Contractor will forward the original report to the MassDEP

and one (1) copy to The Town of Ashland, Attention: Mr. Mark Oram.