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Special Meeting Minutes

Town of Leicester
Selectboard Hearing Minutes
Wednesday, February 22, 2012 @ 6:00 P.M.
Members Present:  Diane Benware, Tom Barker, Ron Fiske, Ken Young, Robert Oliver
Others Present:  Julie Delphia, Town Clerk/Treasurer, Jeff & Cheryl McDonough, Complainants, Ted Otis, Dog Owner and Sandra Trombley, Selectboard Secretary
 Hearing called to order at 6:08 p.m. by Chair. 
The Chair explained the purpose of the hearing which was for a complaint of a vicious dog. 
All parties will be sworn in.  The parties bringing the complaint will speak first and then the owner of the dog in question will speak. 
Chair reported that Brian Webb, the Animal Control Officer would try to get here, but if he couldn’t he would call in and give testimony on speaker phone.  Although Brian has tendered his resignation as Animal Control Officer, the Chair only wants him to give them any dates that he could recall, information from conversations he had with either party.
Chair explained their job as the Municipal Governing Body.  The statute indicates that it is their duty to gather information, take that information under consideration, and then deliberate on a course of action.
Chair explained that Sandy is here to take notes because it is a quasi judicial matter and the Board is charged with determining the Findings of Fact; which is basically your testimony.  Then to render their Conclusion and the final component to that is what’s called, the Order.
The statute; as well as the dog ordinance, indicates the action taken can be anything from having the dog confined, to having the dog removed and disposed of in a humane manner.  Just so everyone is clear on that.
Jeff & Cheryl McDonough raised their right hands and were sworn in by the Chair.
Jeff began his opening statement by stating it will be a very short meeting if everyone abides by the oath; telling the whole truth and nothing but the truth.  Fact is fact.  You can’t change fact.
Jeff requested Cheryl’s letter to be read into the statement so it’s part of the record.
 The Chair read the email message sent Saturday, February 11, 2012 from Cheryl McDonough.
Jeff stated that he was sure they probably have some questions, but as he stated before “the facts are the facts”, he can’t change the facts.  Jeff indicated, as you all remember, he was sitting here once as the BB Gun Constable through attacks of previous dogs.  The letter from the Town was asking Jeff to be a little more neighborly.  We did nothing about it; as far as any more complaints.
Our dogs are very small.  Two photos of their dogs were entered into the record. 
Cheryl stated that their dogs are always on a leash; even while indoors.  They are never off a leash.
Jeff stated they are always on a leash because they are small dogs and they don’t want them running off or getting out the door.
Jeff’s understanding is that there has been a petition signed stating that they have never seen their dog attack another dog or known of any attacks on any dog.  From his knowledge, but he will wait to see the petition, this is total seasonal residents who aren’t there most of the time.  John Rouse, who is a seasonal resident, his dog was attacked, but refused to do anything about it because it was a neighbor.
Jeff stated that there has got to be a time.  You just can’t keep complaining.  After the last time, it was redundant of having Mr. Webb stop in and give a summons.  Then we had a reoccurrence just a few days later. 
My wife and I are here to answer any questions.
Tom asked if they had a report from the vet for January 4 and January 5 visit.
Cheryl said he physically checked the dogs over, but she didn’t have the report with her.  It would not be a problem to get one.
Tom asked what the vet’s findings were.
Cheryl stated that there were puncture wounds on the black dog’s neck.  Mr. Webb will testify that the night he came, after the attack, he wanted to check her over, and she would not come out of her kennel.  This is a large dog kennel.  She would not come out.  She was traumatized.  
Cheryl asked to show the Board a photo of a 15 x 8 area where their dogs do their business; unless they are walking.  It is a very small area.  They rake it when it gets messy.
Chair clarified that the letter written in 2009 was in reference to actions of “Amber” attacking their other two dogs that have since passed away.
Ken asked if they had to take them to the vet at that time.
Jeff stated “no” that both times they were out there when the dog came across the fence and they grabbed the dogs up and that was the time the situation where I was sitting down here because the dog was trying to get into the house and he went in and got his BB gun.
Follow up comment.  Jeff stated that they have a lot of dogs on the lake.  They run pretty free and they cause no problem. There’s water there.  A lot of people have water dogs.  They run across properties and no one really minds; unless they stop.  That’s where the problem lies.  They stop and attack.  They have bitten.  I believe in the ordinance, after a bite, it’s a vicious dog.
That was the end of Jeff’s comment but asked to reserve the right for further comment at the end of the meeting.
Tom stated that it would be helpful if we had something from the vet in regard to the puncture wounds.
Cheryl stated that she would get that tomorrow.
Ted Otis raised his right hand and was sworn in by the Chair.
Ted began with points of fact:
A.  Amber is not his dog.  He is clarifying that Amber is his son, Jesse’s dog.  Because his son is not 18, Ted is the one representing him.
B.  Amber is a purebred English Springer Spaniel.
Bob asked what the McDonough dogs were.
Cheryl stated they were Brussel Griffins.  Small dogs of 10 lbs.
Ron asked Ted if his son lives there and has control of the dog.
Ted said 50% of the time.
Ted wanted to preface that he had no idea what was going on tonight; other than that he was required to be here at this meeting.  That’s all he knows about this.
So, going with that, he did go out and he had the neighbors sign something.
Ted reported that Mr. Webb was very sociable and represented the Town very well on both occasions I spoke with him.
I told him the first time, that yes I would pay the ticket, that yes the attack did take place and that the dog was reactively aggressive and has been reactively aggressive to Mrs. McDonough.
Before that dog tried to attack her dogs, Mrs. McDonough kicked her three times.  We witnessed it.  I noticed that this meeting is at a time that all of my family is gone.  Ted stated he has nobody else here because they are all gone on vacation this week.  So, they aren’t here, but, what I did ask was; I asked the people in the neighborhood to sign a form stating “my pets and/I have never had a bad encounter with Amber Otis, Springer Spaniel, of 200 Indian Trail, Leicester, VT.  Ted provided signed forms from neighbors.  He chose not to read all the letters into the record, but offered copies from Rob Gerow, Von Trapp, the Sheldricks, a letter from Jackie Devoid, my partner Casey, dealing with the dog and what led up to this.
 Ted asked; why does Amber go to Jeff McDonough’s house?  Let’s start at the beginning.  The
house’s prior owners used to keep a box of dog biscuits right inside the door, so every time Amber did go out and wander around the neighborhood, as all the neighborhood dogs do, she would go out, sit on the porch and bark, they would let her in and feed her dog biscuits.  This went on for years until Chet and Kay sold the house to the McDonough’s.  We warned them about that and said if it became a problem, then ok, let us know. It did, in fact, become a problem.  We have worked and we have tied her and we have untied her.  We let her run for exercise usually twice a day.
Brian Webb is now on the speaker phone.  He will hold until Ted finishes his testimony.
The first time Brian came to the house, Ted discussed it with him and Ted said “yes”, that the dog had in fact been up there and had responded to the three kicks by swirling around.  Ted did in fact call the dog back.  He did get her under control and put her inside.
Brian came down and said that this was a problem.  Ted said absolutely.  Brian gave Ted two tickets for $150.  He paid them.  Ted discussed it with his son.  He said o.k.; she’s been on a leash outside.  Because this has been a problem, we have to make certain she’s always on a leash.  And since that time, she has always been on a leash, except for every afternoon like this afternoon when I get home, having talked with all the neighbors around me, I said is it  all right if I exercise her down towards; she runs and gets the ball 5 times.  The reason she does that is because she has an extremely bad leg due to an accident that happened when she was a puppy.  She can only run about 5 or 6 runs.  Her elbow has been rebuilt at the cost of about $5,000 or $6,000.  It was injured in an accident at Devoid’s Chicken Farm.  They took care of her when she was first around.
Brian was very sociable.  I said yes Brian, this is your job, I know.  I understand that.  You gave me the tickets.  I said o.k.  I paid the tickets.
Then on 2/5/12 at approximately 10:30 in the morning, we were contacted by Officer Webb with a complaint stating that on 2/1/12, four days before, at 6:00 a.m. Amber had attacked Mrs. McDonough and put her in reasonable fear of bodily injury.
I asked Brian why I’m hearing this on Sunday.  I have no idea, I got no response.  Brian didn’t call me that morning.  But, Brian stated that this occurred at 6:00 and Mrs. McDonough had told him that I had already left the house and only my son’s car was there.
The Friday prior to that, I had a minor stroke.  Since that time, I have been very carefully monitored.  I leave the house at the exact same time.  I get up at 6:15 and I leave the house at 7:00.  No one else was in the house that day except my son and me.  We are denying and will deny in court that incident took place.  It may have taken place.  I am not guaranteeing it was Amber.  Amber has not been off the leash since.  Every day that she goes out, she’s on a leash.  You can ask Brian if in fact a leash was in place when he got there.  And it is and it is used.
This afternoon, the dog has been teased.    It’s called reactive aggression.  The dog has been teased and I don’t think they have meant to tease the dog.  This is a dog that went over there every single day because the people that owned the house gave her dog biscuits.  So, o.k., we’ve tied her up.  This afternoon the dog was out and was barking and a car went up and down the road; backed up and down the road, teasing the dog.  I think it’s inappropriate.  That was witnessed by someone who is not here.  I will be glad to have her come and say, yes in fact, that happened.
I do not want this situation to continue.  I agree with them.  I have confined the dog.  I have tied the dog up.  The property is not fence able because there is a shared right of way that comes down between us.
One neighbor that I didn’t have one of these forms from that I gave to you was the Rouse’s.  I had talked to the Rouse’s yesterday.  Rouse’s said that the McDonough’s had asked them to support them here and they refused to do that. I said I understand that.  Ted, looking at the McDonough’s, said you can call and ask Johnny if that’s what he told me yesterday. Johnny and Carolyn both told me the same thing.  So, that’s fine and I didn’t want them in that situation either.  I don’t think they should be.  So, I understand it.
This is not a vicious dog.  Read the paperwork.  This is not a vicious dog.  I would be happy to answer any questions.
Brian Webb was asked to raise his right hand and was sworn in over the phone.
Brian said it was true that he didn’t give Ted the ticket until 4 days later, but he didn’t have time to deal with the issue right then and there.
The tickets have the time and date that I issued them.
Brian went down on one occasion.
The first occasion he received a call and went down.  Cheryl McDonough’s dog had been attacked by Ted’s dog.
Brian said he first spoke with Ted and then spoke with Cheryl.
Brian went in to look at the dog.  The dog was petrified; it would not come out of the kennel, so Brian was unable to see a wound around its neck.  The crate was covered up so the dog could calm down, with a dark blanket.  The dog was still hiding somewhat.
I issued violation notices for the dog attacking Cheryl’s dog.  I told him to follow up and make sure that was taken care of and it looks like he did.
Brian apologized that he didn’t have his notes right in front of him.  The second call I received was within two to three weeks, possibly four weeks after that incident.   I received a call early one morning around 6:00.  I was heading to Rutland as I read meters for CVPS.  I received a call from Cheryl.  I didn’t know who it was at first.  I could hear screaming and crying in the background.  She identified herself as Cheryl and that she had just been attacked by Ted Otis’s dog.  Instead of the dog coming after Cheryl’s dog, it came after her.  She was very, very, very upset.  I assured her that I would follow up with it.  Eventually, I did.  My work schedule has been hectic.  But, I did follow up with it.
I was not there, but I did speak with Ted.  He was not there at the time, but I did speak with Cheryl and the only vehicle that was there was his son’s from what I understand from what Cheryl had told me.
Nevertheless, the dog did cause reasonable fear of bodily injury and that is why I wrote those other tickets.  Other than that, I don’t really know what to say.  She’s definitely afraid of the dog. 
On Ted’s behalf, I did buzz Ted and met the dog.  The dog seemed fine with me when I walked in.  It was not aggressive toward me or anything like that.  Ted does have adequate restraint on his property for that dog.  There is a cable that goes across his property so that he can let her on a run.  It looks adequate enough to keep her restrained on his property.  I did take notice of that. 
At the time that I arrived there on the first occasion where Ted’s dog attacked Cheryl’s dog, the dog was inside.  The dog was fine.  I didn’t notice anything as far as the dog being aggressive toward me.  Then again, I don’t live there, so I don’t know exactly how things went down.  I can say, from my observation the dog seemed fine then.  I wasn’t there.  Basically, I just wanted to make sure everything was fine at that time and also to follow up with the complaint.
So, other than that, that’s pretty much all I have to say.  I wished I had my notes right here.  I’ve been looking for them.  Everything should be on the tickets for everything that’s needed for my testimony.
Chair indicated that Julie has a copy of the tickets and she also has a copy of the final note you wrote up after having issued the second tickets.  If it’s ok I will read what you wrote and enter into minutes.
Chair asked Brian for clarification on the second occasion when you got the early morning call, it’s not clear to Chair, you spoke to Mrs. McDonough, but not to Ted, is that correct?
Brian stated he did speak to Cheryl, then he spoke with Ted’s wife and then after speaking with her, I can’t remember exactly what was said.  I’m sure she could remember.  Then I got a call from Ted and Ted said he was denying the allegations.  The message he received from Ted said, “I don’t want to talk with you anymore after this until I get a lawyer”.   He was very, very cooperative when I called him.  Ted’s a very nice guy.  There’s no question there.  There wasn’t an issue of communication or anything like that.
Ted interjected that he wanted to be very clear about something to Brian.  A. I’m not married and B.  You did not call that house the morning you spoke to Cheryl McDonough on February 1st.  You called Sunday morning.
Brian confirmed, yes, it was a few days after, you are right.
Ted said, that’s fine.
Brian said he did not follow up until a few days afterward.  Yes, he’s right about that. Yes, I agree with that.
Chair clarified with Brian. Brian, you spoke to Cheryl on the day that she called you, but you didn’t talk to Ted until 3 or 4 days later.
Brian said “yes”, that’s right.  But, it doesn’t change the fact of what happened.  It’s unfortunate that it happened. That’s another reason why I have been having a hard time.  Work has been
really hectic lately.  Not that that’s an excuse, but it’s been pretty chaotic.  I have been following up with any complaints, but it’s taking me a little bit longer than I would like. 
Chair asked if there were any more questions of Brian and asked Brian to hang on a little while longer.
Ted stated that the reason he wanted to bring that up was that if he had in fact called me at 6:00 in the morning, he would have got hold of me and I would have said hi Brian, how are you and he would have said that he had a complaint and then the alleged ‘I wasn’t there’, would have been cleared up.  I was there.
Brian asked a question of Ted.  You weren’t home that morning?
Ted said, yeah, I was.
Brian stated that it was my understanding your vehicle was not there, but that your son’s red car was there. 
Ted said, and my car was there.  I never leave for work before 7:00.  Because my daughter has to go to Salisbury, I have to go and get her on the bus at 7:20 at our house in Salisbury so I leave the house at 7:00.  I go over and get my daughter and she and I and my partner go out and sit beside the road and I do it every school day.
Brian asked how she would have gotten out.
Ted said, exactly right.  I don’t agree with this, Brian.  Like I said, and that’s nothing to you.  You’ve been fine.  This one I don’t agree with.  I fully agreed with the other one.  I’m very glad.  I paid the fine.  You’re absolutely right.  I took care of what needed to be taken care of.  This one I don’t agree with.
Tom asked if it was possible that Ted’s son let the dog out.
Ted answered, no.  Do you want to get a 17 year old out of bed five minutes before he has to?  Good luck. He gets up…when I leave the house at 7:05 I send the dog up and she gets her boy up out of bed.  He leaves the house about 7:30.
Chair wants to enter into the record; the handwritten note that you had that accompanies the second ticket that’s dated 2/1/12.  Chair read letter into the record.
Brian’s impression was that he didn’t think Ted wanted to talk to him further about it.  I am great with Ted.  I can understand why he would be upset, but he understands that I am just doing my part.  That’s how I feel about that.
I’m just trying to figure out how the dog would have gotten out.  Was the door open?  No my impression was that Ted wasn’t there and that his son was there and his son let the dog out.  But Ted is saying he was there, so that’s my only question there.
Ken asked who put the dog back in the house.
Ted said she doesn’t have a dog door, she’s inside all day.  She stays inside all day.  I obviously asked Jesse about this.  I can’t speak to his answer, because that would be hear say in a judicial hearing.
Ken asked the McDonough’s if either one of them see the dog return to the house.
Cheryl said “no”, I was running too fast to get into my house.
Ken asked:  after you were in your house, you say the dog was jumping at your door.  Did you, at that point, go on to other things or did you watch this dog and see where he went and who if anybody or neighbor let him back in?
Cheryl explained that she was too terrified.  I was crying.  I got on the phone immediately to Brian.  He didn’t know who I was at first, because I was crying.  I told him what had happened.
Ken:  So, you didn’t see the dog go home or anyone let it back in the house?
Cheryl said: No, my only statement to that would be, if she’s inside all of the time, doesn’t she need to go poop in the morning and at night time.
Jeff commented that she had an action and her action was that she got him out of bed.
Jeff commented that the petition statements provided by Ted are all from seasonal residents.
Ted asked if Mr. Gerow is in there as only part time now.
Jeff believes he’s a seasonal resident on the tax record.  He’s not a full time resident because of the septic laws, I believe.
Ted stated he was there full time.  You know that Jeff, he’s your neighbor.
Jeff stated he was glad Ted brought it up; Jeff stated that they may be in violation.
The Chair interrupted to say that is another issue.
Jeff stated his point was that they are all seasonal residents.
Jeff read the petition; my pets and I have never had a bad encounter.  This sounds like three years ago when Michael Vick was defending his dogs.  Many people signed petitions.  That’s absolutely ridiculous.  We wasted probably 45 minutes.  If we had started out with the initial statement I made, if everybody told the truth, the whole truth, and nothing but the truth, this would have been over a long time ago.
Brian asked if Jeff was there that morning when Cheryl was chased to the house.
Jeff answered “yes” he was in bed.
Ken asked if he witnessed the attack.
Jeff answered that he absolutely had not.
Cheryl commented that today at 1:45 in the afternoon as I was bringing my husband out, Amber was out running freely.  There was a blue Subaru in the driveway.  She was not on a leash.
Ted said, oh yes, she was.
Cheryl said; it must have been a long one.
Ted answered, she is.
Tom requested that all questions go through the Board.  There should be no party conversations.
Ted stated today that approximately 2:00, Mrs. McDonough left her house and went up the road.  Amber was wrapped around the tree on her leash out front.  Our yard is no more than from here to there.  She has a leash that she can run around the neighborhood.  You can tell where she goes.  She’s a dog.  It’s not hard to tell where she goes.  There are little definitions there that we pick up on frequent occasions. So you can see the ring of where she goes.  She was in fact, tied up.  There was a blue Subaru in the road.  I had a woman in there cleaning the house.  I didn’t know that was a problem.  So, apparently what she told me before I got here and what I  started before was, McDonough’s car went up the road and Amber was out there barking and they backed down the road and went up the road twice.  Amber was tied in the yard.  I’m glad to have that witness come in or I can call her and have her do it on the phone, if you like.
Ken:  I guess I don’t follow you with the car going up and down the road.
Ted said:  like you were teasing the dog.  She goes up the road and then back down.  I think, to be fair to Cheryl is; the dog was out there barking and Cheryl went up and looked and said  oh the dog isn’t tied, so she backed down to see and then went up again;  and was the dog tied, yes.  Did the dog chase the car?  Nope.  The dog never went anywhere, it’s tied.
Ken asked:  that was at 2:00?
Ted:  2:00 this afternoon
Ken asked Cheryl:  You saw this dog loose at 1:15?
Cheryl:  1:45
Ted said:  If you would like to make a blind phone call at 247-5952, I don’t know if she will answer or not.
Ken said it would have to be a sworn statement.
 Brian was released from the phone.
Ted stated that until he got here tonight he didn’t know anything other than he was required to be here.  I had no idea it was a judicial hearing.
Chair said that the note that Ted got said that it was a hearing to investigate the complaint of a vicious dog. 
Julie apologized for any typos.
Ted said, that’s fine, I’m here.  This should not go on.    I understand this.  I don’t want them to be unhappy.  But, I’m not going to say this is a vicious dog, when it’s not a vicious dog.  She is tied.  She’s out there this afternoon saying o.k. quarter of two, she’s running around.  No, she’s not.
Chair asked if there were any further questions from either party.
Chair explained that the next step in the process is that the Selectboard will deliberate over the information that has been shared and testimony given and then we are to draw conclusions and to formulate an Order regarding the dog.
Ted:  Point of Order:  Why haven’t I been given the paperwork that the McDonough’s gave to you?  I haven’t seen anything that has been sent to you.  Isn’t it my right to understand my accuser?  I gave copies of my paperwork to you.
The Chair gave Ted a copy of McDonough’s complaint.
Ted asked if this was to be a decision process tonight and you’ll let us know.
Chair:  Yes, the goal would be that there will be a decision this evening and that you would get a certified letter that would go out within 48 hours as we need to prepare the Findings of Fact.  In the meantime, the dog should continue to be confined as you indicated.
Ted with a question:  She is confined, but every afternoon when I get home I throw the ball for her 5 times.   Not toward them, but away from them.  I first assure that the McDonough’s are not outside or up the road.  I throw the ball 5 times and that’s all she can do because she’s exhausted due to her leg injury and she goes back inside.  Am I still allowed to do that?
Ron stated that as long as the dog is under his immediate control.  Ron asked the McDonough’s if they have a problem with that.   
Ted said he’s very conscientious about this.  This is just the tip of the iceberg.  I am not going to confine her and have her tied up all the time and have 13 dogs running all over my neighborhood, all over my lawn.  And I’m not exaggerating.  The McDonough’s will agree that I’m not exaggerating.  Last year, we had 9 dogs next door in one house.  They are all water dogs.  There are five “Ambers” within a quarter mile of where we live.
Motion by Tom to cease discussion and go into deliberative session.  Second by Ron.  All in favor.  So approved.
Motion by Tom to take a four minute recess and come back and review.  Second by Ron.  All in favor.  So approved.
After a short recess, the Selectboard went into deliberative session.
Motion by Tom to recess until 9:30 a.m. Saturday morning.  Second by Ken.  All in favor.  So approved.
Adjourned 8:00 p.m.
Reconvened Saturday, February 25, 2012 @ 9:30 A.M. to review Findings of Fact, Conclusions of Law and Order.
Motion by Tom that Selectboard sign Findings of Fact, Conclusions of Law and Order as written.  Second by Ron.  All in favor.  So approved.
Document signed.
Motion by Tom to adjourn @ 10:15 A.M.  Second by Ron.  All in favor.  So approved.
Respectfully submitted,
Sandra L. Trombley, Secretary