WVN #367: Selectmen admit "technical" meeting law violation
- Dear Wayland Voter,
The selectmen have admitted violating the Massachusetts Open Meeting Law by discussing candidates for town positions outside of an announced public meeting. But they stop short of admitting the central allegation against them: that the illegal discussion caught on live television shows that the Board of Selectmen had already decided in secret whom to appoint.
In an Aug. 17 letter to the attorney general's office, Board of Selectmen Chairman Steve Correia concedes a "technical transgression." The letter seeks a determination that no remedial action is required beyond a public re-enactment of the conversation and summaries of the appointment process.
Correia's letter says the re-enactment in public session on Aug. 16 "may not have been necessary " but is "a cautionary measure for transparency purposes."
Former Selectman Linda Segal's Aug. 5 complaint asserts that appointments made on July 8 were the result of a "back-room deal."
The selectmen contend that a 25-minute session during the public meeting of July 8 and discussion at previous meetings show that the Board deliberated its choices for the Historic District Commission and the Conservation Commission in public.
Video linked at the bottom of this newsletter shows the admittedly illegal conversation before the meeting was convened, the re-enactment and the later discussion and voting. WVN readers can judge for themselves.
Correia's letter appears to provide two responses that Segal's complaint seeks: admission of an Open Meeting Law violation on July 8 and a stated commitment to avoid violations in the future.
The Board issued a statement read at the Aug. 16 meeting, a special session to discuss this and another OML complaint. The statement says that "we gave careful consideration of all candidates over many weeks and several meetings" and made decisions "with the best interests of the town in mind."
It concludes : "We are committed to the Open Meeting Law and we are committed to make certain that this type of conduct will not occur again."
The complaint also asks that documents seen in the video be provided to the public and that the Board openly conduct the "deliberations that should have occurred on July 8." It isn't clear that the Board's response satisfies these requests.
RE-ENACTMENT AND DELIBERATION
For one thing, the Aug. public re-enactment doesn't include all words not audible on the video. Nor does it include what was said after WayCAM, the local public access channel, switched to a public service announcement for a few minutes.
The selectmen's response includes a transcript of the re-enacted conversation which largely agrees with the complaint's transcript. There are a few more words in the selectmen's version. The selectmen didn't specify whether added words represent attempted reconstruction from memory or words they believe they heard on the DVD.
Despite minor differences in the two transcripts, both appear to describe an apparent misunderstanding over candidates who will be appointed, questioning and then confirmation of some previous decision.
Fay clearly says "Boelter's off." referring to Alice Boelter, who sought reappointment. After Correia reads from a document and names the four people appointed later that evening, Fay says, "I'm sorry, I thought Chris had to be off. We had to make a choice..." His misunderstanding is resolved when he is told that a person approached by Pope as a candidate decided to apply for another committee, leaving room for Chris Hagger. Saying "taking her off and her off," Correia evidently refers to Boelter and Diana Warren, the two commissioners not reappointed.
The July 8 deliberation that the selectmen refer to is described in the draft minutes of the Aug. 16 meeting: "That deliberation included careful consideration of each applicant and repeated the recapped discussion that occurred just before the start of the meeting." This appears inconsistent with WayCAM video of the July 8 meeting.
Videos and minutes of this and previous meetings show no deliberation in the sense of comparing and contrasting candidates.
On July 8 the selectmen spent about 10 minutes on four Historic District Commission appointments voted unanimously. Those not reappointed, Boelter and Warren, were mentioned as candidates but not discussed.
After that, the selectmen devoted about eight minutes to four appointments to the Conservation Commission. The name of a candidate not appointed, Betty Salzberg, wasn't mentioned. (Disclosure: Salzberg is a frequent contributor to this newsletter).
Recordings do indicate, however, that the selectmen were looking for new blood on the two commissions. After being criticized by citizens for harsh questioning at previous meetings of candidates seeking reappointment, Correia explained that the Board was seeking such skills as efficiency and conflict management. Both commissions have been blamed -- unfairly, they say -- for delays in permitting the mixed-use Town Center project. The selectmen haven't defended them.
When Segal first inquired about the disputed conversation and asked for relevant documents, Correia and Pope criticized her at their next meeting on July 26. Correia called it "borderline harassment." Pope said: "Ridiculous...These things have got to stop." Pope maintained that the only conversation before the July 8 meeting was "small talk," and denied that there was any "paperwork." At that time it wasn't known that citizens had recorded the televised pre-meeting conversation. WayCAM's recording of the meeting begins with the call to order a few minutes later. Since a DVD of the July 8 pre-meeting conversation came to light, the selectmen have not criticized the complainant.
According to procedures issued by the attorney general's office when it assumed jurisdiction over the OML on July 1, the person filing the complaint waits 30 days from the filing date to question the response by contacting the AG's Division of Open Government. The waiting period for this and the related OML complaint summarized below would extend to Sept. 7, the first business day after Labor day.
The selectmen also replied on Aug. 17 to another OML complaint involving the Historic District Commission. Attorney and former Selectman George Harris asks the attorney general to rule on executive (closed) sessions the Board has held to discuss the Town Center developer's lawsuit against the Commission, which remains unresolved after more than a year.
The selectmen's letter says the OML matter was decided when the Middlesex district attorney issued an "authoritative" ruling last March 26 that the law permits closed sessions on the suit. The law hasn't changed since the attorney general assumed administration of the law, the selectmen say, and therefore no remedial action is needed.
The complaint rejected by the DA was filed by HDC Chair Gretchen Schuler. When Twenty Wayland sued the HDC over plans to widen roads in the Historic District, the selectmen didn`t provide defense counsel. (The commission and the selectmen gave differing accounts of why the HDC had to seek pro bono legal counsel.) Harris says the selectmen have met in closed session on the suit at least 10 times, including twice since July 1. The selectmen only recently offered to include the HDC in an executive session.
Harris contends that the DA cited no law and decided the matter incorrectly. He argues that the law specifically permits closed session only when the governmental body is a party to the litigation.
-- Michael Short
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Wayland Voters Network
Michael Short, Editor