Two Arlington residents have filed complaints with the state Ethics Commission targeting the appointment of the interim town clerk, one before the selectmen voted Feb. 25 and one after. At the same time, town counsel is declining to reveal the advice she gave selectmen about this issue.

A. Michael Ruderman, a Precinct 9 Town Meeting member, said he filed a complaint Feb. 8. Another Arlington resident has said he filed a complaint March 1. He did not respond to a request for permission to publish his comments about the filing posted to the Arlington e-mail list, but a March 2 story at Boston.com identifies him as Steve Moniak.

"Even if it's not illegal, it appears to be cronyism," the Web site quoted Moniak.

Ruderman cited Chapter 268A, Section 20 of the Mass. General Laws as to the prohibition on selectmen appointed to any other municipal position during their terms and for six months thereafter.

Asked in an e-mail Feb. 27 what legal advice she provided selectmen before the board voted 3-1 to name Selectmen Jack Hurd interim town clerk, Town Counsel Juliana Rice wrote:

"I am not going to provide you access to legal opinions I have prepared for my client. I will state that I do not agree with the readings of state and local law referred to in your message."

The question cited MGL 268A as well as provisions of the Town Manager Act.

Asked in a follow-up whether she is citing attorney-client privilege to support that view as well the legal precedent justify that stance, she responded March 2:

"Yes" to the first. To the second, she referred to Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444, a 2007 ruling by the state Supreme Judicial Court that restricts communications by attorneys.

The Mass. Municipal Association, which advises town officials, includes a discussion of it on its Web site. See www.mma.org/municipal-government/2095-sjc-attorney-client-privilege-extends-to-public-officials

Meanwhile, Ruderman explained March 2 what happened after he filed his complaint Feb. 8:

"I received an acknowledgement a few days later, but have learned nothing since about their investigation. I had previously corresponded with town counsel, who e-mailed me that there was no problem in the selectmen's taking an application from one of their own for the position of town clerk because 'the Selectmen don't control the Clerk's office' (I paraphrase).

"I think town counsel is misreading the intent of MGL Chapter 268A ... [regarding] the prohibition on selectmen being appointed to any other municipal position during their terms and for six months thereafter; this was the basis of my complaint."

He wrote that he "hoped we would have a decision by now, but in truth I have no idea how long the [Ethics Commission] will take. 

"I do think our complaints have merit," he wrote, referring to his own and Moniak's.

"Before filing, I described the situation to one friend, a lawyer and town counsel in Massachusetts himself, and off the top of his head (from his vacation in Florida), he replied, "That's 268A, and there's a six-month waiting period."

Ruderman wrote that another person he consulted, a former city councilor, "reacted like I'd struck his knee with a reflex hammer: 'They can't do that! He's got to be off the Board for six months -- your city solicitor (sic) ought to know that.'"

Ruderman concluded: "Maybe we're all misinformed; I hope we find out soon. In any case, I call upon our town clerk, our Board of Selectmen, and our town counsel to answer questions in a public forum on the whole matter of the appointment of an interim town clerk. We may or may not like the answers, but we insist upon the dignity of a response."

The issue began in January when Town Clerk Corinne Rainville announced her retirement a year early. Five people applied for the interim position, including Stephanie Lucarelli, the assistant town clerk for 15 years, and Hurd, a selectman since 1997.

The selectmen next meet Monday, March 8. A replacement for Hurd could be named by March 22.