WVN #364: Camera catches selectmen in apparent violation
- CAMERA CATCHES SELECTMEN IN APPARENT MEETING VIOLATION
Dear Wayland Voter,
Four Wayland selectmen, apparently unaware that they were being broadcast before their public meeting began, inadvertently disclosed that they had already decided in secret whom they were about to appoint to town positions, a citizen's complaint alleges.
At their next meeting, two selectmen denied that there was a violation of the law, and one denied the existence of a document clearly visible in the telecast.
The alleged violation occurred a week after the Massachusetts attorney general took charge of enforcing the Open Meeting Law, which requires that, with few exceptions, the people's business be done in public. The selectmen had repeatedly urged everyone involved in Wayland government to attend training sessions about the modified OML law or watch recordings of those sessions.
WayCAM, the town's public access cable channel, broadcasts all Board of Selectmen meetings. Sometimes the camera is turned on a few minutes before the meeting is called to order. WayCAM's recording of the July 8 meeting begins with the call to order shortly after 7 p.m., but citizens watching at home recorded the live pre-meeting conversation.
The recording indicates that the selectmen violated the law not only in their pre-meeting discussion but in making earlier secret decisions.
Commission candidates "were entitled to a fair, just, open and transparent process, not a back-room deal," the complaint asserts.
Shortly after 6:54 p.m. by the clock behind them in their meeting room, four of the five selectmen discussed appointments they would make later in the evening to the Conservation Commission and Historic District Commission. They spoke in low tones, and some words are obscured, but the subject of the discussion is clear.
Selectmen Sue Pope and Tom Fay are shown comparing different recollections of decisions agreed to at some earlier time about the Historic District Commission. They stand, talking softly and gesturing. Selectman John Bladon turns to listen, then says "Yes" when Pope names "Kathie" as one of the people selected. Fay next ticks off "Kathie Steinberg, Kevin (Crowley), Marge (Baston)," all of whom were appointed two hours later.
"(Alice) Boelter's off..." Fay says, referring to a candidate for reappointment, but still seems unsure of the fourth appointment.
Chairman Steve Correia joins the discussion. Taking a document from his briefcase and saying,"I talked with Fred (presumably Town Administrator Fred Turkington) today," Correia reads names of people later appointed: "...we have Margery (Baston), Chris (Hagger), Kevin (Crowley), Kathie (Steinberg)...taking HER off and HER off..." (the last part evidently referring to Alice Boelter and Diana Warren, who were later denied reappointment).
"...I'm sorry, I thought Chris had to be off..." Fay says.
"...No, originally you're right," Correia tells Fay. "We had her (Pope's) person, George. Originally, right, but George said no." (Pope had sounded out George Uveges about the HDC, but Uveges decided his finance background was more suited to the economic development committee, to which he was appointed later in the evening.)
(NOTE: At the bottom of this newsletter you'll find a link to the recording and other material.)
Before the July 8 meeting adjourned, the selectmen rapidly made appointments to the two commissions and other town bodies. A selectmen would nominate a candidate, briefly citing such virtues as a fresh outlook. Usually one other selectman would briefly endorse that candidate. A unanimous vote followed each nomination.
There is no indication in WayCAM recordings or minutes of Board of Selectmen meetings that there were ever any deliberations in the sense of contrasting and comparing candidates. After a name was put up for a vote, there was no listing of other candidates. At least one candidate for a ConCom vacancy was never mentioned again in public after being interviewed.
After seeing a DVD of the July 8 conversation, former Selectman Linda Segal sent an "Open Meeting Law Inquiry & Request for Public Records" to the selectmen on July 20. It said the board appeared to have been talking before the meeting about public business within the Board's jurisdiction and requested all pertinent documents.
At the next scheduled Board of Selectmen meeting on July 26, the inquiry was listed among five public records requests received. "I would suggest we don't do anything with this, because it's very unclear," Pope said of the inquiry. She said the only pre-meeting conversation was "small talk" about such things as a long weekend and denied that there were any documents to produce: "There's no paperwork." The video shows a document in Correia's hand, and other papers relating to appointments were later placed before the selectmen by Turkington before the meeting was called to order, which is normal procedure.
Chairman Correia said of the request, "It's borderline harassment...I'm getting a little tired of it..." Correia and Pope expressed displeasure at this and the other records requests. "Absolutely ridiculous," Pope said. "You're absolutely right about this, Sue," Correia replied.
"These things have got to stop," Pope said.
Joe Nolan, former chairman and longest serving selectman at the moment, reminded his colleagues that every citizen has a right to ask for public records and that officials are obliged to provide them. (Generally speaking, citizens don't make a formal public records request unless documents sought aren't readily available.)
Nolan also noted that it is normal for selectmen to chat in general about what business they will take up, but that the OML would apply to any substantive discussion. On July 8 Nolan arrived just before the meeting was called to order.
(Part of this discussion is included in the video linked below.)
Receiving no documents or substantive explanation in response to her request, Segal filed a formal Open Meeting Law complaint on Aug. 5, which under the new rules goes first to the town clerk. The complaint includes a DVD of the televised pre-meeting discussion and 15 pages of attachments including meeting minutes and emails.
The complaint seeks accurate minutes and other relevant documents related to the event, discussion at a future selectmen's meeting of all candidates for the slots and acknowledgment that the Open Meeting Law was violated.
When the selectmen next met on Aug. 9, Selectman Pope again asked the first question about correspondence received, referring to Turkington's July 28 email response to Segal's inquiry. Turkington replied by telling the Board that an OML complaint had been filed the previous Thursday. He said he had asked town counsel to look at it and would shortly write a response "on your behalf."
The selectmen didn't discuss the complaint or give any indication that they were familiar with it. Selectman Fay, a lawyer, asked Turkington later in the meeting for details about responding before the deadline. Turkington said he would draft a response and that the Board might want to convene to discuss it. The next scheduled meeting is Aug. 23. The deadline is Aug. 25.
The selectmen and other supporters of the proposed Town Center mixed-use development have blamed other town bodies including the Conservation Commission and Historic District Commission, for delays in issuing building permits. First proposed in larger form in 2005, the development remains unbuilt, and some officials express doubt that it will ever reach the maximum permitted size of about 370,000 square feet.
Selectmen conducted interviews with candidates for appointment or reappointment on June 21 and 28 and July 8. A frequent question was how the candidate stood on the Town Center project.
Selectmen aggressively interviewed ConCom and HDC members who sought reappointment, asking such questions as whether candidates were more loyal to their commission or to the town, how they interpreted pertinent state law and whether they could make their processes more efficient. New candidates received friendlier treatment. After public criticism of selectmen's questioning of sitting commissioners, Correia explained that the interviews were designed to elicit such skills as conflict management.
Whatever the selectmen's rationale for their decisions, one result is that Diana Warren and Alice Boelter are gone from the Historic District Commisson, which was sued by the Town Center developer, Twenty Wayland, after issuing a Certificate of Hardship that set phasing conditions on road widening. The HDC was forced to find pro bono legal counsel to defend itself from the suit, which remains unresolved.
Hagger and Margery Baston were reappointed to the Commission, but both had recused themselves from deliberating on the certificate, citing issues relating to their residency in the Historic District. Thus four of the seven commissioners are either new or were not part of the earlier deliberation.
The selectmen appointed three new members to the seven-member Conservation Commission, one of them filling a year-old vacancy. Veteran member and former chairman Roger Backman was reappointed, but for only one year rather than the usual three-year term. The new members are Markey Burke, Ted Harding and Larry Kiernan. Burke was an active supporter of the Town Center project.
The interviews are part of the archive available for public viewing at www.waycam.tv.
When the Board of Selectmen was accused of violating the Open Meeting Law several times in recent years, members asserted that they take the law seriously. Though some Massachusetts officials complained about the recent changes that became effective on July 1 when the state took over jurisdiction from district attorneys, Wayland officials weren't among them. Many of the complaints involved procedural requirements such as posting meeting notices where the public can see them at all times.
More substantive complaints have come from the Massachusetts Newspaper Publishers Association, which favors a law with more teeth. In 90 percent of states, the association says, individuals can be held accountable. But in Massachusetts only the municipality can be fined. Taxpayers, but not lawbreakers, are thus penalized.
"The fact that public officials can violate the Open Meeting Law and not face consequences is a travesty," Robert J. Ambrogi, a media lawyer and executive director of the newspaper association, told the Boston Globe.
Massachusetts municipal officials are allowed to discuss such matters as labor negotiations and lawsuits in secret. But the law is clear on deliberating such matters as appointments in the public eye.
The intent of laws limiting secrecy was expressed in a federal case by a U.S. Sixth Circuit appellate judge, Damon Keith: "Democracy dies in the dark."
The link below takes you to three pieces of video totaling about 13.5 minutes. The first shows the alleged violation of the Open Meeting Law before 7 p.m. The segment ends when WayCAM suddenly switches to public service announcements. The second segment begins with a glimpse of the PSA just before WayCAM switched back for the last few minutes before the meeting was called to order. Town Administrator Fred Turkington is shown handing out documents to be used during the meeting. The third segment shows the selectmen at their July 26 meeting discussing the request that preceded the OML complaint. In the first segment, noise-canceling software was used to reduce background sounds from such things as air conditioning.
-- Michael Short
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Wayland Voters Network
Michael Short, Editor