Page I of 2 From: Joseph S. Fair Sent: Monday, July 19, 2010 12:06 PM To: Ken Foley Cc: selectman mcbride; David Marciello; Jonathan Silverstein ‘Subject: Conservation Commission member Ken: You have requested an opinion as to whether a Conservation Commission member's resignation has any legal effect in light of the member's subsequent request to withdraw that resignation. In connection with this opinion you have advised me that Conservation Commission Member Bruce Andrews submitted 2 letter to the Board of Selectmen in which he advised the Board that he was resigning from his position as a Conservation Commission member “effective immediately." You have also advised me that after receiving the letter, Selectman Donald Leffort took a copy ofitto the Town Clerk's Office, had it time and date stamped and filed it with the Town Clerk’s Office. You have advised me that the day after this was done, Mr. Andrews went to the Board of Selectmen's office and indicated that he wished to withdraw his fesignation, at which point his letter, or a copy thereof, was given back to him by the Board of Selectmen's Assistant, Helen Dennen. You have provided me with copies of the date stamped resignation letter Selectman Leffort filed with the Town Clerk, the unstamped resignation letter bearing Mr. Andrews’ handwritten note requesting to withdraw his resignation and Ms. Dennen's handwritten acknowledgement ofits return and the Town Clerk's July 8, 2010 memorandum to the Board of ‘Selectmen on the subject. Based on the information you have provided me with, itis my opinion that Mr ‘Andrews’ resignation is effective and binding, Under G.L. ¢.41, §109, a Town officer's resignation is not effective “unless and until such resignation is filed with the town or district clerk or such later time certain as may be specified in such resignation.” Nowhere in the statute does it specify who must fie the letter with the Town Clerk in order for it to be effective. Had the Legislature wished to limit such flings solely tothe individuals who are resigning, it Could have said as much, but it did not. This is not surprising since in my experience itis quite common for resignation letters of appointed officials to be addressed io the individua's appointing authority rather than to the Town Clerk. In addition, the statute does not contain any indication that only a letter addressed to the Town Clerk bearing an original signature will satisfy the statute's requirements, In this case, there does not appear to be any dispute that the letter of resignation is a true and accurate copy of the letter that Mr. Andrews voluntanly submitted to the Board of Selectmen. It is also clear on the face of the letter that the resignation was to be ‘effective immediately.” Thus, in my opinion Mr. Andrews's resignation from the Conservation Commission became effective upon Selectman Leffor fling a copy of same with the Town Clerk. While itis my understanding that Mr. Andrews later sought to withdraw his resignation, it is my understanding that his efforts to do so occurred after Mr. Leffort filed the resignation letter with the Town Clerk. Once this was done, it could not, in my view, be withdrawn by Mr. Andrews. As the Massachusetts Supreme Judicial Court has previously stated: Official robes cannot be put off and assumed at the pleasure of individuals or officers. Public interest requires that all possible certainty exist in the election of officers and the beginning and expiration oftheir terms, by law or resignation, and forbids that either should be left to the discretion or vacilation of the person holding the office or the officer or body having the appointing power. Warmer v. Selectmen of Amherst, 326 Mass. 436, 439 (1950), 7/19/2010Page 2 of 2 In sum, itis my opinion based on the information you have provided me with that Mr. Andrews’ resignation from the Conservation Commission became effective upon Selectman Leffort filing a copy of same with the Town Clerk. ‘and Mr. Andrews’ subsequent attempt to withdraw itis without any legal effect. No further action is required by the Board of Selectmen relative to Mr. Andrews’ resignation. In my opinion, his former seat on the Conservation Commission is currently vacant if it has not already been filled, Per your request, | intended to copy the other Selectmen on this email, however, | only had an email address for Selectman McBride. As such, would you kindly see that Selectman Leffort is provided with a copy of this email Please feel free to contact me if you have any questions. Thank you for your attention to this matter. Joe Fair Joseph S. Fair, Esq Kopelman and Paige, P.C. 101 Arch Street, 12th Floor Boston, MA 02110 (617)556-0007 (617)654-1735 (fax) ‘This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is PRIVILEGED and CONFIDENTIAL and/or may contain ATTORNEY WORK PRODUCT. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited, If you hhave received this communication in error, please delete all electronic copies of this message and its attachments, if any, and destroy any hard copies you may have created and notify me immediately. 7/19/2010