Town’s latest defense against an Open Meeting Law Complaint (Updated)

by beth on May 9, 2018

On March 14th, David Parry filed an additional complaint accusing the Board of Selectmen of violating Open Meeting Law. This one focused on the board’s failure to document discussions about a potential Warrant Article. He claims that omissions were to avoid discussion of a likely controversial Article and links the actions as related to his prior complaint.

Town Counsel issued a response this week negating the charge. The response defends that there was no deception or intent for it. But it also indicates that they should better document “such topics” in the future.

Parry informed me that he was satisfied with that acknowledgement and won’t appeal the response. (He is still waiting to hear back from the state on his previous OML complaint response that he did appeal.)

So, what was the March complaint about? Parry claimed that the Board intentionally tried to keep discussions about changing the form of government to a Strong Town Manager model out of the public eye by minimizing references on the Warrant and in minutes.

And he alleged that the reason was linked to his prior violation complaint:

This other complaint was filed by me (Parry) against the same 2 officials involved in this case (namely the [Town Administrator (TA)] and Chair of the BOS) who on August 22, 2017, disciplined me at a secret, closed meeting of 4 persons which included these 2 officials. This discipline (including prohibiting me from going to Town Hall without prior appointments) was enacted without providing any specifics, and without due process. I was unable to confront their false accusations, and only learned about the matter AFTER the fact. To impose discipline, these officials claimed to rely an the hypothetical powers of the TA to discipline me. I contend that no such powers exist in the existing town bylaw establishing the TA.

However (THIS IS THE KEY POINT) such powers would be increased IF THE TA POSITION WAS CHANGED TO A TOWN MANAGER, precisely as these 2 officials have just proposed. However, they have made this proposal without adequate public notice, and without an accurate record, Which I believe was INTENTIONAL — in that it was an attempt to MINIMIZE its publicity, and potential objections, because it would obviously be controversial, just as it was when the TA bylaw was first enacted in 2013, when the alternative of a Town Manager was REJECTED.

His main evidence was a significant omission from minutes for February 22nd, despite his purportedly raising the issue to Town officials before minutes were approved. 

At the February 6th meeting, BOS Chair Dan Kolenda suggested adding the Town Manager Article to the Warrant for this year’s Annual Town Meeting. The agenda had included “Closing of warrant” but didn’t specify that any articles might be discussed or added. However, the board didn’t dig into the issue that night. Instead, they agreed to discuss the possibility at their February 22nd meeting. And the discussion was well documented in the minutes.

The agenda for the 22nd included an update on the Warrant, but again didn’t specify adding the Article. (It was listed in the meeting materials packet. Unfortunately, due to an apparent glitch, the link to that packet may have been missed by some.)*

That night, selectmen discussed the Article for over 8 minutes. In the end, they decide to make the initiative one of their two priorities over the next year. That discussion wasn’t included in the minutes. It was the only Article for which no action was listed.

Parry claims that he warned the Town about the omission in time for them to fix the issue:

I called the TA office on Mar 5, spoke to a senior staff person, and asked that the draft minutes be corrected before approval which was to occur at the BOS meeting on Mar 6. The TA staff agreed to look into the matter, but the draft minutes were NOT corrected, despite my complaint, and there being adequate time to correct the draft

On March 6th, no mention was made of the omission from the minutes, which were unanimously approved. The only defense Town Counsel Aldo Cipriano provided was that if the board had moved forward with the Article, it would have posted the Warrant and held an advance hearing. But the same minutes did include decisions to eliminate other Articles on the Warrant. That discrepancy wasn’t explained.

Cipriano’s main defense against deception was the way some residents (like me) follow the BOS meetings. The meetings were broadcast and recorded by Southborough Access Media. They continue to be available online through SAM’s website and YouTube channel.

But, given the fact that not all of the boards meetings are broadcast**, I hope members and staff focus more on the last line of his letter:

We would recommend, however, that agendas and minutes in the future consistently reference such topics

Cipriano’s response was the third he wrote within the past six months. In March, he issued a response to another complaint centered around Town Warrant discussions. In December, he responded to Parry’s complaint which was based on an official warning Parry received from Town officials. Parry’s complaint claimed that the Town officials violated OML in their handling of the issue.

You can read Parry’s March complaint here. You can read the response here.

*The link to the page that included the packet was available through the Town’s meeting calendar. But the link that was sent by email and added to the BOS page under its agenda list went straight to the packetless agenda. That’s not the usual practice.

**(The board’s morning meetings are rarely, if ever, recorded. And closed executive sessions never are, though once the confidential period has passed minutes are approved and released.)

Updated (5/10/18 12:07 pm): I fixed the link to the Town’s response letter.

1 David Parry May 10, 2018 at 10:45 AM

Editor

Thank you for the article, but I believe you provide the incorrect link to the letter “response” from Town Counsel. (Instead, there are two links, both to the same complaint). I request you print his complete letter response.

Also, you infer, at the beginning of your article, that Town Counsel’s response admits no violation of the Open Meeting Law. However, I contend that a careful reading of his response shows that he DOES admit it, but in typical lawyerly language. See his second to last paragraph. Quote: ” I would recommend …” etc.

If that sentence was put in more direct words, it might state: The town should NOT have done it this way, which was technically a violation of the Open Meeting Law. This was not intentional. The town SHOULD have posted a full agenda and correct minutes, and I recommend that, in future, we do so in all respects.

I you (the Editor) do not agree with my reading of his letter, as containing an “artfully” written admission of a violation, then I ask you to call him directly. If he admits no violation, and you print his denial, then I will appeal to the AG and state that I am NOT satisfied with the town response, and I will request a formal “determination” from the AG, including a clear statement of violation. That is the procedure which the Open Meeting Law specifically allows.

Thank you.

2 beth May 10, 2018 at 12:13 PM

Thank you for pointing out the incorrect link. I fixed that.

As for the other – it is clear that Cipriano (whose job is to defend his clients, the board of selectmen) did not state that they violated OML. He recommends that they document better in the future, but doesn’t specify that their communications were insufficient under OML.

Instead, he wrote:

We see no intention to neither deceive nor find evidence of deception as the summary of public knowledge on the topic was available, especially if the warrant article was advanced to a subsequent posted warrant which would have elicited additional discussion in public session at a Selectmen’s meeting and thereafter at a Town Meeting

If you disagree – please point out the exact words from the letter that do what you claim.

If you are unsatisfied with Cipriano’s response, that is between you and him (and the AG), not me and him. (I hardly think I’m going to get a clearer admission of wrong actions by the board from the lawyer whose job it is to protect them.)

3 Concerned Voter May 10, 2018 at 2:11 PM

Again, just a suggestion: Suggest that no one should be pointing out any “exact words” as the letter speaks for itself.

As with any response letter, if the EXISTING REPLY is incomplete or unclear or unsatisfactory in its responding points in any way, it is self evident that that is the answer. If not satisfied with the response, the letter should go to the Attorney General’s office.

Just one humble opinion — Thanks!

4 beth May 10, 2018 at 3:26 PM

I disagree. I believe that some exact words matter more than others. Of course it is important to read the entire substance of something. But it is also often important to call attention to words that either clarify or undermine the general point being made.

5 Concerned Voter May 10, 2018 at 11:50 AM

Just a suggestion:

Generally speaking, in terms of procedure, If THE EXISTING REPLY is incomplete or unclear, that speaks for itself — and volumes. If this existing reply is unsatisfactory or unclear, it is self evident that it is exactly that.

Unsatisfactory or unclear reply? It should be turned in to the Attorney General based on the existing reply.

6 David Parry May 10, 2018 at 3:19 PM

OK, so now I have at least two persons reading Town Counsel’s response, and they are not convinced it is an admission of a violation. Personally, I think this is buried in the legally artful language of the last sentence:

“We would recommend, however, that agendas and minutes, in the future, consistently reference such topics”.

To me, this implies that all topics were NOT properly or consistently referenced, in the agendas and minutes. Or, in plain english …. A specific requirement of the Open Meeting Law was violated.

I guess people want to see the plain english version come from the AG’s office. So I have no alternative except to ask for it. And I will.

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