761WVN #556: More Open Meeting Law violations
- Jun 25, 2014
Dear Wayland Voter,
Once again the Wayland School Committee has been found in violation of the state Open Meeting Law. Coincidentally, the June 16 decision by the attorney general’s office comes after a debate in the local press about the law.
Also in this newsletter: Updates on wastewater litigation, the search for a new town administrator, and summer activities.
TWO NEW VIOLATIONS
The latest ruling from the attorney general’s office takes a patient tone in contrast to the strongly worded decision issued on April 28 finding an intentional violation of the Open Meeting Law and setting the maximum fine of $1,000. Fines are rare, and this was Wayland’s second. (The first involved four selectmen.)
The June 16 decision from Assistant AG Jonathan Sclarsic said the School Committee violated the law when it went into closed executive session on Feb. 3 without announcing that the meeting would reconvene in public later, and again on Feb. 10 when an executive session took up a matter not allowed under the law.
The law is clearly spelled out, Sclarsic said. An announcement of reconvening is mandatory. (If you follow Board of Selectmen meetings, you have probably heard the chair reciting from a prepared text the announcement that the board will reconvene and immediately adjourn or continue with the open session. This indicates to citizens how long the closed session is estimated to last.)
The 10 reasons allowed for a closed session include discussing compensation for specified non-union employees. It does not permit what the Committee discussed, general compensation policy.
Sclarsic quoted from the Committee’s reply to the complaint in which it essentially acknowledged the violations. Sclarsic ordered the Committee to release minutes of the executive session on compensation policy and declared the violations unintentional. He went into considerable detail about what the law requires. In effect the decision says that the Committee’s ignorance of the law and a one-time failure to remember the need for an announcement merited only a slap on the wrist.
Too Much Enforcement?
In the weeks between the two AG decisions, citizens’ letters in the Wayland Town Crier raised questions about the frequency of Wayland OML complaints, the role of watchdogs who file complaints and the cost of lawyers.
Gordon Cliff, a former candidate for selectman and current member of the audit committee writing only for himself, blamed lawyer and former selectman George Harris, who in recent years has filed many but by no means all complaints of OML violations.
“My view is that Mr. Harris’s relentless "heroic" pursuit of violations long ago went from being a very good thing to being way overboard,” Cliff said. “It has slowed things down and distracted resources at the expense of letting well-intentioned volunteers do their best to do the town’s business.” He called it “overlawyering.”
Harris’ reply in the Crier asked why Cliff believes that it’s no longer necessary to file OML complaints: “Inasmuch as violations continue unabated, what makes Gordon think that all town officials at last respect the law? Because they say they do?..In my experience, some town officials share the same view as Gordon – the OML is an impediment to serving the town. With that negative attitude, the stage is set for violations.”
Other citizens have complained over the years about the cost of defending against OML complaints. School Committee member Donna Bouchard, speaking only for herself, weighed in on that issue in a recent edition of the Crier.
“The committee, until recently having two licensed attorneys as members and presently having one, seems to think that only outside paid attorneys can possibly comprehend the OML, despite the fact that it is written for lay board members to follow,” Bouchard wrote.
The Committee’s budget for legal expenses is is $27,600, she said. After paying $14,310 for OML cases, that category was $24,847 over budget as of March 31. She says most complaints can be handled without legal fees, often at the local level.
Certainly the legislators who wrote the Open Meeting Law and the AG lawyers who enforce it intended that volunteer public servants should be able to understand it and try to resolve complaints locally. AGO’s guidance is posted here:
The central point is that the public’s business must be done in public except for certain specific exceptions. OML training is available at the local level (Harris says Wayland needs more). When in doubt, a local official can ask for advice.
The AG’s stern April decision and recommended fine stem from the fact that the School Committee had been warned and, despite legal representation, still paid so little attention that it repeated the unlawful behavior.
Though Gordon Cliff wrote that he wished George Harris would turn his talents to something else, other letter writers disagreed. Enforcement of the law begins with somebody filing a complaint.
In an unscientific online poll, the Crier asked readers what they thought about the Open Meeting Law. Four percent of respondents didn‘t know what the law is, 8% thought it a tedious hindrance, and 88% thought it an important way to keep government accountable.
You can read the AGO’s determination letters, learn the range of complaints filed statewide and AGO views on compliance. Use this link & then the date of decisions:
-- Michael Short
TOWN ADMINISTRATOR SEARCH UPDATE
The Selection Committee met on June 23 with consultant Alan Gould (Municipal Resources, Inc.) to review the pool of town administrator candidates his firm recommends, following the plan posted on the town website:
Committee chairman David Gutschenritter reported to the selectmen later that evening that the committee will interview candidates on Tuesday, July 8 to determine a recommended group of finalists. All selectmen are expected to interview finalists on Tuesday, July 15. See elapsed time 02:52:00:
Selectmen’s summer schedule through July:
Monday, June 30 - Wastewater-related executive session
Tuesday, July 15 - TA finalists interviews
Monday, July 28 - Resume board/committee appointment interviews
A revised and shorter list of town board vacancies is posted on the town website:
At their June 23 meeting, the selectmen appointed all seven members to the new Municipal Affordable Housing Trust Fund Board. See their new webpage:
The Town still awaits the Attorney General’s approval of the enabling legislation passed at the April 2014 Annual Town Meeting.
For WayCAM’s recording of the June 23 interviews, fast forward to elapsed time: 01:53:30:
After meeting last month with Information Technology Manager Leisha Simon, the selectmen now have town email addresses:
Simon also discussed other ways for the Board to use technology, such as receiving meeting agenda packets electronically, which could save the selectmen’s office time and money.
The School Committee already accesses its meeting documents electronically. Simon said she could post the selectmen’s backup materials on the town website with agendas and minutes. Selectmen in some towns, such as Sudbury and Concord, already do so for easy public access and increased transparency.
No decision has been made yet on taking this step.
-- WVN Staff
FY14 TOWN FINANCE STATUS
At the June 18 Finance Committee meeting, Finance Director Brian Keveny presented his Fiscal 2014 Budget Status Report for the General Fund, Enterprise Funds and Revolving Funds as the fiscal year is about to close. His report does not include the school side of the budget. See:
Fast forward this WayCAM recording to elapsed time 00:17:00:
The good news is revenue, particularly unbudgeted revenue and the bond premium, is higher than expected, which Keveny explained in detail. Accounts were carefully scrutinized and almost $2 million of unspent dollars on the town side of the budget were turned back to the General Fund. For FY14 and FY15, the last page of his report estimates Free Cash will end up around 8% of budget.
Keveny reported that Wastewater has turned its recent dire financial situation around, after a rigorous effort to collect prior year and current year bills. The FY14 and FY15 appropriations for this enterprise fund, however, are tight and likely need future town meeting action to be able to pay all vendors. The WWMDC had not made a written request for a reserve fund transfer.
-- WVN Staff
WASTEWATER LITIGATION UPDATE
The Board of Selectmen and Wayland’s Wastewater Management District Commission (WWMDC) continue to hold frequent executive sessions, meeting jointly and at times separately.
A review of WWMDC agendas shows 16 executive sessions posted so far in 2014, in the wake of losing the lawsuit brought by the Town Center developer against the Town and the commission.
Four identified parties are involved, each represented by legal counsel: Selectmen and Town Counsel Mark Lanza, WWMDC and attorney Damon Seligson, Town Center developer Twenty Wayland, LLC and its law firm, and a group of other treatment plant customers represented by attorney Kurt Fliegauf.
Among the issues is how users of the new wastewater treatment plant will be charged to pay the remaining amount for the cost of the plant, which is about $5 million.
The WWMDC discussed at length a draft form for abatement filing, and also reiterated previous statements that betterment charges would be based on capacity. No vote was taken because the Commission wanted to be sure the total to be collected does not exceed the total remaining cost of the plant.
The original plant cost (over $7 million, including interest on borrowing) has been reduced by previous surcharges to users. A betterment is tax deductible; a surcharge is not. The FY15 betterment table posted on the WWMDC website is at
Total payments by users depend on the period of time they elect to pay the betterment. Interest will be at 5%.
Treatment plant customers in the Route 20 corridor have organized to advocate for a fair and equitable formula for anticipated betterment charges. They hired legal counsel last fall to protect their interests, made public records requests, and many have appeared at meetings, expressing their concerns, frustrations and/or hardships during public comment.
Since litigation begun by the largest plant user, the Town Center developer, in 2011 is still not resolved yet, discussions by town officials continue under executive session:
The plant began operating in November 2012 when Stop & Shop opened, but plant construction was not deemed completed until February 2014, leaving a six-month clock ticking until mid-August, 2014 for the WWMDC to set betterment charges.
Attorney Fliegauf has offered to participate in mediation with the three other stakeholders. Town officials asked for proof that he represents a majority of plant customers and over 50% of plant capacity according to Title V. Of the 80 addresses hooked up to the plant, 74% have expressed their commitment, including 100% of those residing in the Wayland Commons condos.
A spokesman for the group, Jonathan Buchman (property owner along Pelham Island Road hooked up to the plant), asked for an update at the June 16 selectmen’s meeting during public comment. He reported that his group had met the standard, without Whole Foods Plaza and Russell’s Garden Center. Chairman Joe Nolan recommended that they communicate via their attorney. See elapsed time: 00:03:45
Another executive session is planned for next Monday, June 30.
-- WVN Staff
Transfer station & recycling center: It’s time to purchase permits for FY15. Prices will remain the same for all categories, except for a $5 increase on a full sticker, to $155.
Town Beach: The Recreation Department provides a wide range of programs at Wayland’s town beach, along Lake Cochituate, accessed from the West Plain and Parkland intersection. For more information:
Concerts: The Council on Aging offers free one-hour outdoor concerts for all ages on Thursday evenings in July in the courtyard of Town Building. For more information:
Free concert: Saturday, June 28: The Bay Circuit Trail Alliance and Massachusetts Walking Tour will hold a free concert at 6 p.m. at the Wayland Town Building. Musical performers include Mark Mandeville, Raianne Richards, Amy Alvey and Mark Killanski in addition to performances by local musicians and artists from the Wayland area.
Since its founding in 1990, the Bay Circuit Alliance (BCA) has served as a catalyst. More than 230 miles of multi-use, passive recreational trail have now been dedicated, thanks hundreds of volunteers in 34 cooperating towns, including Wayland, where the trail traverses Oxbow Meadows, Trout Brook, Sedge Meadow, Cow Common and Heard Farm Conservation Areas on its way south from Lincoln to Sudbury.
The Alliance is a partnership of organizations and individuals, public and private, working to complete the Bay Circuit Trail and Greenway. BCA’s membership consists of six regional, four statewide, and more than 30 local member organizations, plus many interested individuals. The musicians walk the trail during the day and then give a concert in the evening.
Wednesday, June 25:
Community Preservation Committee, 8:30 p.m. Agenda includes discussion about meetings with owner of Mainstone Farm about a conservation restriction to continue agricultural uses.
Thursday, June 26:
Board of Public Works, 7 p.m. Agenda includes one-year permit extension request for 150 Main Street (formerly Finnerty’s), Ameresco, FY15 water rate, lawn irrigation systems, methodology for road paving decisions, Intermunicipal Agreement with Sudbury regarding River Road water main.
Conservation Commission, 7:30 p.m. Agenda includes Heard Farm volunteers, Ken Moon Award, rail trail, Brendon Homes’ landscaping change at River Trail (town center housing)
SAVE THE DATE:
Wednesday, July 16: Public Forum, Finance Committee Long Range Planning 2016-2020
Thank you for reading this WVN newsletter. Please forward it to your friends and
neighbors in Wayland. If they want to receive their own copy, they can sign themselves up by sending a blank email to:
Click reply and send after receiving an e-mail confirming the subscription.
If you have questions, email mmshort1@...
Wayland Voters Network
Michael Short, Editor