At its meeting on December 21 the Board of Health took three steps directly related to what took place at its previous meeting on December 14:
- Reversed its course on a motion unanimously approved at its meeting on December 14 calling for its inclusion in the meetings and communications of the town’s Covid-19 Task Force.
- Reopened an investigation into the question of conflict of interest on the part of Board member Dr. Ann Kiessling
- Discussed and passed a new communication policy to be effective immediately
Rescinding a Previously Approved Motion
Member Bea Brunkhorst moved that a motion voted at the meeting of the Board on December 14 be rescinded on the advice of Town Counsel. That motion, unanimously approved, called for the Board of Health “to be included in all communications and meetings that are being held in the town by town employees relative to Covid-19 and/or SARS-CoV-2.”
Brunkhorst said she had been made aware through an email from Select Board Chair Ed Pierce to the Board of Health and others that an opinion on the legality of the motion had been sought from Town Counsel. Counsel responded that the Board of Health does not have the power to direct other town departments or mandate participation in staff meetings. Brunkhorst said that based on this advice she believed that the motion as made was not legal and should therefore be rescinded. She added, “I think we were just ignorant. We’re all trying to do the best we can, but the law is the law.”
Brunkhorst’s motion to rescind was accepted 4-0-1, with Kiessling, who made the original motion at the December 14 meeting, abstaining.
Conflict of Interest
At a previous Board of Health meeting on November 30, Board Chair Sarah Thompson had requested that Dr. Kiessling obtain an opinion from either Town Counsel or the State Ethics Commission as to whether her position as a member of the Board of Health dealing with testing issues was a conflict of interest with her position as founding director of the Bedford Research Foundation which conducts testing. Kiessling agreed to do so and filed a Disclosure of Appearance of Conflict of Interest form with the Town Clerk on the afternoon of December 14 and reported at that evening’s Board of Health meeting that she had spoken with an attorney from the State Ethics Commission who had advised her that she did not appear to have a conflict of interest.
At the December 21 meeting Board of Health Member Brunkhorst put forward a motion asking that the matter be referred to the State Ethics Commission for further investigation. Brunkhorst said that following the Board’s meeting on December 14 she asked Heidi Porter, Director of Health and Human Services and the staff lead for the Board of Health, to follow-up with Town Counsel to determine if the document filed by Kiessling “met the legal standards as outlined as part of our November 30 meeting request.”
Brunkhorst said that after review Town Counsel advised that the disclosure statement filed by Kiessling “…is insufficient to address or resolve concerns as it relates to G.L. c. 268A [Conduct of Public Officials and Employees].” Based on this information, Brunkhorst moved that the Board of Health “…refer the matter regarding Ann Kiessling’s involvement as an elected Board of Health member in Covid testing, protocols, policy, and discussion as it relates to her position as executive director of the Bedford Research Foundation, to the State Ethics Commission for further review and investigation.”
In the discussion that followed, Board member Anita Raj asked if initiating the referral to the State Ethics Commission immediately precluded Kiessling from being able to speak on all issues relating to the Coronavirus until a determination was made. “I don’t want to gag Ann,” Raj said, “she’s one of the best experts we’ve got.”
Director Porter responded that based on what Town Counsel advised, Kiessling “…can’t discuss testing…anything relative to testing…a policy about testing or discussion of procedural stuff related to testing because of the laboratory [Bedford Research Foundation] involvement.”
Brunkhorst’s motion was accepted 3-1-1, with Kiessling abstaining and Raj voting against the motion.
Chair Thompson asked for discussion of a new communication policy that she had requested Director Porter to draft. The purpose of such a policy, Thompson said, would be to outline a “concise and Open Meeting-compliant way to respond to correspondence we get via email and from the public. Additionally, considering last week’s meeting, [this policy] outlines a process for public participation in our meetings.” She said that the policy is consistent with one adopted by the School Committee and one that is currently under discussion by the Select Board. She asked Porter to summarize the salient points of the new policy for the Board.
Porter identified two basic parts of the policy: one dealing with written communication and one dealing with the participation of the public during Board meetings. Written communications to the Board, such as an email, if received individually by a board member, would be forwarded to the Chair who will acknowledge receipt and let the sender know that whatever question or issue was raised would be addressed at the next Board meeting. If the concern were urgent the sender would be advised to contact the Director of Health and Human Services directly.
With respect to public participation in meetings, if a resident attends a meeting of the Board (either on Zoom or when possible, in-person) and wishes to ask a question or make a comment they would be allowed to do so only during a designated time for public comment. According to Porter’s summary, speakers would be limited to three minutes and the Board will listen but provide no response during the meeting. Porter said, “This is not an opportunity for a back and forth. After the speaker is done, the Board would take those thoughts and comments under consideration and then potentially take them up at the next meeting or have them addressed by staff.”
Board member Anita Raj commented that although it may be necessary to do things differently because of the pandemic, she hated to lose the informality of the back and forth between residents coming to the meeting and the Board.
Member Susan Schwartz expressed concern that the Board’s agendas are typically “crowded” and perhaps a cap of 30 minutes in total should be specified which would allow for roughly 7 to 10 people to speak for 3 minutes each. She suggested both the individual limit of 3 minutes and the total limit of 30 minutes could be adjusted at the discretion of the Chair.
Member Kiessling asked if such limits would mean that people wouldn’t be able to ask questions and get answers. “I like the idea of a public comment time,” she said, “but I am not in favor of getting rid of the ability [for a person] to ask a question or make a comment during a meeting. Last week we got lots of interesting comments from people.”
Porter responded that delaying an immediate response from the Board members allows them time to consider all the comments and provide an appropriate response.
Member Brunkhorst said she felt the policy as described made a lot of sense, particularly at a time when the Board is very busy dealing with the pandemic.
The motion to accept the policy as presented with additional wording to cap the comment period at 30 minutes with the Chair having the authority to extend that period at her discretion. was passed 4-1-0, with Kiessling voting against.
At this point, in adherence to the policy just adopted, Chair Thompson opened up the meeting for public comment. Doug Horton, who identified himself as a father of three children in the Bedford schools, asked if the Board could explain their position on the question of what is a safe social distance for children in a school setting. He said he had explored the reference documents on the Board’s website and believed that 6’ is suggested “if possible” or “if feasible” but is not mandated. Additionally, he wanted to encourage the Board to support forming a task force to enable the involvement of town residents. He was unable to further explain his comment as the three minutes allotted to him had expired.
Stephen Carluccio spoke next. “There is a lot of stress and anxiety in town. The public is feeling that they do not have input and a forum to express what they have been going through and how the Covid policies have been impacting them. I really hope all the elected boards provide a forum for everyone in town to talk about what’s going on…this needs to happen immediately.”
Carluccio went on to say that he was very disappointed that the Board passed a communications policy that “could be interpreted as limiting people’s participation in your meetings.” He asked why the change was needed now. “You were allowing participation for the last 8 months but now when people are expressing anxiety and stress you pass a policy that actually limits participation.”