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WVN #533: Fallout from Open Meeting Law decision

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  • waylandvoters1
    Dear Wayland Voter, The local political impact of a recent Open Meeting ruling remains to be seen. But the decision may change the way the law is interpreted
    Message 1 of 1 , Dec 2, 2013
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      Dear Wayland Voter,

      The local political impact of a recent Open Meeting ruling remains to be seen. But the decision may change the way the law is interpreted in the future throughout Massachusetts.

      Also in this newsletter: State environmental review of the proposed rail trail begins, and Raytheon returns for its annual update about the cleanup at its former Route 20 facility.


      ANALYSIS
      AG RULES ON WAYLAND COMPLAINT

      When Kim Reichelt, a local activist and founder of WaylandeNews, filed a complaint with the attorney general’s office, she argued strenuously that the three selectmen who voted to terminate the town administrator’s contract on Aug. 26 violated the Open Meeting Law (OML) by not providing enough specificity in the meeting agenda and by privately discussing the matter beforehand.

      The decision issued by the AG’s office on Nov. 25 found no evidence of the latter accusation. But it ruled that advance notice of the agenda item was improperly, though unintentionally, vague. It warned that a recurrence could be “evidence of an intentional violation of the law,” language used in the conclusion of numerous OML determinations archived here:

      http://www.oml.ago.state.ma.us/Default.aspx?section=0
      The Wayland case is number 2013-174.

      Tony Boschetto, the selectman who introduced the motion leading to dismissal, told the Wayland Town Crier that the OML ruling could have “wide-ranging consequences across the commonwealth for how agendas are prepared and what can actually be discussed under any particular topic.” Tighter standards would apply to all public meetings governed by the law. Boschetto said he looked forward to working with his colleagues on adapting to the new conditions.

      The Law

      Massachusetts law G.L. c. 30A, §20(b) requires that notice of a governmental public meeting contain “a listing of topics” that the chair, 48 hours in advance of the meeting, reasonably anticipates will be discussed. What is “reasonable” is a judgment that may depend on circumstances.

      The Nov. 25 ruling is at odds with earlier AG decisions. In the past three years the attorney general has found no violation in at least five specificity-related complaints. In each case the AG ruled that meeting notice was adequate even though topics not included on the agenda were brought up and voted on.

      For example, just four months ago, the AG found no violation when the Wayland Board of Selectmen (OML 2013-111) voted on Aug. 1, 2012 to authorize the town administrator to speak on its behalf at another meeting, a matter not mentioned on the agenda. The AG found that the OML does not require the chair to guess which topics might be raised by Board members or meeting participants, only that the public body list those topics “reasonably anticipated by the chair.”

      In case 2013-119, the AG found no violation when the Carver Board of Selectmen voted to disband its Audit Committee and then reconstitute it with new membership. The Oct. 16, 2012 meeting agenda listed only “Audit Committee Update” under the topic of “Appointments.”

      In case 2013-118 involving the Hamilton-Wenham Regional School District, the Hamilton Finance and Advisory Committee considered a number of topics not on the Nov. 14, 2012 meeting notice, including the school budget. The AG absolved the committee but delivered a reminder of the reasonable anticipation rule.

      In case 2012-77, the AG found no violation when the Becket Board of Selectmen voted to appoint an Emergency Management Director and an alternate at its Aug. 11, 2010 meeting. The meeting agenda included no mention of these appointments.

      In case 2011-21, the AG found no violation when the Nantucket Board of Selectmen voted on Dec. 8, 2010 to approve a human services contract. The re-vote of a matter previously presented six months before was not on the agenda.

      The Nov. 25, 2013 Wayland ruling seems to impose a higher standard.

      The Aug. 26 meeting notice listed “Review Town Administrator Contract and Job Description.” The Board had received relevant documents before the meeting. The town administrator contract was the topic, and any provision of that contract could have been a subject of attention or discussion. At the meeting Boschetto, without preamble, introduced a motion to terminate the contract. Selectmen Joe Nolan and Steve Correia angrily objected, and there was little discussion of the merits of the motion. Correia stalked out before a 3-1 vote.

      The Politics

      After the AG decision, Reichelt issued a statement to Wayland Patch saying, "I felt the decision could have gone further. They clearly recognized there were irregularities in behavior and inconsistencies in the responses they got from the majority selectmen. They were not given the hard evidence that they felt they needed to find that all the violations occurred."

      Reichelt accused Selectmen Doug Leard, Boschetto and Ed Collins of “bad behavior” and made her political aim clear: "What I hope residents will take away from all this is that elections have consequences. Pay attention, get engaged. Most importantly, you have to show up and vote."

      The election of the three in 2012 and 2013 created a Board majority able to outvote Nolan and Correia, who represent the establishment that Reichelt supports. Nolan’s and Correia’s terms expire in April, and voters will fill a third slot created by the resignation in October of Leard because of serious health problems.

      When Reichelt met with the Board to discuss her OML complaint, she was aggressive and hostile. Audience members supporting her broke with decorum by heckling Leard, Boschetto and Collins.

      Other supporters, including former Selectman Tom Fay, have suggested that, despite lack of evidence, the Board majority colluded in advance of the Aug. 26 meeting.

      Though Reichelt expresses outrage at Leard, Boschetto and Collins, she is not known to have reacted similarly when video evidence proved beyond a doubt that in July 2010 Correia, Fay and two other selectmen violated the Open Meeting Law by deciding in secret who would be appointed to town positions.

      In that case, 2011-26, the AG found that the violation was intentional and “a violation of a bedrock principle of government transparency.” The four divided the cost of a fine imposed by the AG.

      Fred Turkington, the town administrator whose employment ended with the Aug. 26 vote, was a polarizing figure in Wayland. Though his name may not be mentioned, his eight-year tenure may loom over the coming political campaign.

      In the wake of his termination, establishment figures depicted Turkington as indispensable, the rudder guiding the town’s progress. On the other side of the political divide, Turkington was seen as harmful to Wayland’s governmental traditions, largely responsible for costing the town millions of dollars in legal and other costs that could have been avoided.

      In one view, three selectmen acted rashly and irresponsibly by terminating Turkington’s contract. In the opposing view, they acted boldly to restore more-transparent and volunteer-led governance.

      -- Michael Short


      RAIL TRAIL STATE ENVIRONMENTAL REVIEW

      Proponents of the Wayside Branch of the Massachusetts Central Rail Trail have submitted their Environmental Notification Form (ENF) kicking off the state’s review of the proposed project.

      The following link to project #15123 provides an overview of the Department of Conservation and Recreation’s rail trail proposal running 23 miles across eight communities, from Waltham to Berlin, including Wayland’s portion of the MBTA’s former rail corridor.
      http://www.env.state.ma.us/mepa/emonitor.aspx

      The “Expanded Notification Form” is a more detailed document:
      http://www.mass.gov/eea/docs/dcr/projects/mcrt/mcrt-expanded-notification.pdf

      Total build-out of the Wayland three-mile segment, from the Weston town line to the Sudbury town line, is estimated to cost $4,306,000. The Selectmen’s 2006 Town Center development agreement (modified in 2009) calls for Twenty Wayland LLC to contribute $250,000 towards the cost of a rail trail. The timing of that contribution is tied to the Phase II retail portion of the town center project.

      According to a recent presentation to the Wayland Conservation Commission, Wayland hopes to use the Twenty Wayland donation towards removing old railway tracks from a one-mile segment running west from the Depot at Route 27 towards the Sudbury River. Draft design sketches are posted on the town website:
      http://www.wayland.ma.us/Pages/WaylandMA_BComm/Rail/RailDepotOct2013.pdf
      http://www.wayland.ma.us/Pages/WaylandMA_BComm/Rail/index

      The state has announced a written public comment period closing on Dec. 20 as well as a site visit at 1 p.m. on Monday Dec. 16, convening at the Wayland Public Safety Building. Rail trail proponents welcome town officials and residents interested in discussing environmental issues associated with the rail trail to attend this site consultation.

      To receive information updates via email directly from DCR about this project, contact: paul.jahnige@... mailto:paul.jahnige@....

      -- Linda Segal


      RAYTHEON ANNUAL UPDATE

      On Wednesday, Dec. 4 at 7 p.m. the annual Raytheon PIP (Public Involvement Plan) meeting is scheduled for the Selectmen's Meeting Room in Wayland Town Building. Raytheon’s representatives and consultants will provide an update on the cleanup of hazardous waste at the former research facility (400-440 Boston Post Road/Route 20) in Wayland, now the site of the Town Center development.

      The presentation will be followed by a question and answer period. The public is invited to attend and participate. For the last 13 years, Raytheon has been holding such meetings to inform the Town of its progress.

      Raytheon’s consultants maintain a document repository of historical site documents. To access those materials on-line, use
      http://www.ermne.com/
      Username is raytheon, password is wayland (all lower case). Hard copies are also available at the Wayland Board of Health.


      MEETINGS CALENDAR: All meetings in Wayland Town Building, unless otherwise noted: http://www.wayland.ma.us/Pages/index http://www.wayland.ma.us/Pages/index
      Click on the date in the meeting calendar for posted agendas.

      Monday, Dec. 2:

      Personnel Board, 6:45 p.m.
      Selectmen, 7 p.m. Agenda includes appointment of interim town administrator, review of energy committee proposal, town administrator search progress, and discussion of a Housing Trust
      School Committee, 7 p.m. Agenda includes discussion of auditor’s reports (including METCO account), approval of teachers’ union contract for 2014-2017, release of executive session minutes, receive school improvement plans, superintendent employment agreement, etc.
      Public Works, 7 p.m.
      Energy Initiatives Advisory Committee, 7:15 p.m.
      Assessors, 7:15 p.m. Agenda includes draft FY14 tax recap, FY15 overlay forecast, preparation for Dec. 9 tax classification hearing, open space classification

      Tuesday, Dec. 3:

      Design Review Board, 6:30 p.m. Agenda includes discussion of signage
      Planning Board, 7:30 p.m.
      Surface Water Quality Committee, 7:30 p.m.

      Wednesday, Dec. 4:

      Raytheon PIP meeting, 7 p.m.
      Permanent Municipal Building Committee meeting CANCELLED for lack of quorum
      Wastewater Management District Commission, 7:30 p.m. Agenda includes discussion of FY15 annual budget and financial report, FY13 billing next steps

      Thursday, Dec. 5:

      Conservation Commission, 7:30 p.m.
      OPEB Committee, 7:30 p.m. Agenda includes preparation for Dec. 16 preliminary findings report to selectmen, cost saving measures, merits of establishing a real OPEB Trust
      Housing Authority, 7:30 p.m. Meeting location: 12 Bent Avenue

      Monday, Dec. 9: Tax rate/Classification hearing:
      http://www.wayland.ma.us/Pages/WaylandMA_TownNews/01C1B054-000F8513

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      Wayland Voters Network
      Michael Short, Editor
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