AG’s office rules that selectman violated Open Meeting Law in 2016

by beth on July 26, 2018

For the third time in the past four years, the Attorney General’s Office ruled that one or more selectmen violated the Open Meeting Law. This summer, the AG notified the Town that a 2016 email from former Selectman John Rooney copying other selectmen was considered “deliberation by email” and an OML violation.

The email in question has angered some opponents of the Park Central project. I’ll admit that surprised me, since the message indicated that Rooney was trying to push a process that project opponents wanted.

But a fact revealed within the email text is part of what has riled up commenters. The Board of Selectmen received a draft of the Zoning Board of Appeal’s Park Central decision in early August 2016. That, apparently, wasn’t publicly posted or circulated to residents who had been faithfully attending meetings and asking to be kept informed. The lack of sufficient time given to residents to review the draft and comment before the board finalized it was one of many objections by abutters that summer.

At the time of the email, the ZBA was being publicly criticized for seeming to be rushing a decision on the big, controversial project. Rooney’s email referred to the BOS having received a draft decision on Park Central dated “September 2016”. Rooney opined to Town Counsel:

It is my understanding that both the Planning Board and the Conservation Commission are in the midst of reviewing this project and intend to offer comments. . .

To prepare a draft decision, without the benefit of those comments, is a stark breakdown in the overall process. Therefore, I would request that you immediately counsel the ZBA to make sure they receive the input from those other entities before putting pen to paper in a written decision.

In the end, the ZBA opted to rule before waiting on Planning and ConCom to finish their reviews. (It was argued by many residents to be a decision rushed into the night before one of the three acting board members on the project moved out of Town.)

Beyond that, some comments have focused on the fact that Rooney broke the law. While ruling against Rooney, Assistant Attorney General Hane Rush’s acknowledged the issue was “a close question”. In making her decision, Rush referred to a court decision made a year and a half after Rooney’s email was sent.

Some that have commented on the blog have also put a lot of focus on the fact that Rooney involved himself in the ZBA’s Park Central decision despite acknowledging that he was advised to recuse himself from “substantively” commenting on the project. But Rush’s decision makes no reference to that conflict as part of the OML complaint.

In contrast, the letter says that emailing Attorney Cipriano to advise on the ZBA’s process wasn’t an OML violation. And he wouldn’t have run afoul had emailed the ZBA directly as an individual. It was only by copying fellow selectmen on his opinion that he violated the OML.

As for Rooney’s conflict of interest (as an office tenant at a Park Central office), within the email he justified “I do believe I have the ability to comment on the issue of process.”

The only consequence for the OML violation was dictating that the board make the email public. (You can open that here.) But the letter also served as warning to selectmen about future email communications:

we caution that similar future violations could be considered evidence of intent to violate the law

(For more key excerpts from the AG office’s decision letter, scroll down** or open the full document here.)

The letter was issued to the Board of Selectmen on June 12th. The email was originally directed to be released within 30 day. On July 13th, it was posted in the board’s packet for their July 17th meeting.

Questioned by Louise Barron about the delay, Chair Lisa Braccio reiterated that the AG had allowed it given the summer schedule. But no reason was given as to why it wasn’t shared at the June 21st meeting.

Barron rebuked the board for the appointment of Rooney to the Advisory Committee in between the letter and the public announcement. Selectman Brian Shea rebutted that the appointment is made by the Moderator. But Braccio shut down board comments, saying “Not going to go there”.

As for the Town’s history of OML violations . . . The AG’s office has posted results of ten complaints filed from 2014 – 2018. (It seems that additional filings won’t be posted until a decision is made. That includes some that were already made public via this blog.) Some, but not all, subsequent filings have roots in the Park Central controversy. 

Most of the complaints were either decided unfounded or rejected as not falling within the guidelines for an OML review by the AG. One of those was another complaint that had been filed against Rooney and Selectwoman Bonnie Phaneuf about email deliberations. In that instance, the AG declined to make a ruling. The complaint was rejected as being filed too long after the complainant was reasonably aware of the official’s action.

But the AG’s office did rule against the board twice back in 2015. As a result, the board was ordered to watch a training video on OML. In the first instance, the AG ruled that performance evaluations can not be held in closed executive session. In the second, it ruled that and that individual discussions on the Burnett House between selectmen outside of public meeting added up to improper deliberations.

Below is a the full list of the posted complaints with decisions and links. (This doesn’t include complaints filed with State Ethics Commission. Those aren’t publicly posted.):

  • June 2018 – Attny Donald O’Neil** claimed: BOS opened and closed warrant without notice on public agenda; AG ruling: No violation
  • March 2018 – Attny Donald O’Neil, on behalf of Attorney Gary Brackett** claimed: John Rooney improperly copied a quorum of the Board in an email; AG ruling: Violation occurred
  • April 2017 – Attny Gary Brackett** claimed: Board’s improperly deliberate by email; AG ruling: Declined to rule 
  • August 2016 – Marnie Hoolahan claimed: Board voted in a public meeting without proper notice; AG ruling: No violation
  • July 2015 – Meme Luttrell claimed: Improper deliberation outside of a public meeting; AG ruling: Violation occurred
  • April 2015 – Desiree Aselbekian claimed: Insufficiently specific meeting notice and discussing topic during a meeting that was not listed on the notice; AG ruling: No violation
  • February 2015 – Desiree Aselbekian claimed: The Board held a vote that was not listed on the meeting notice; AG ruling: No violation
  • February 2015 – Desiree Aselbekian claimed: Improperly held a performance evaluation in closed meeting; AG ruling: Violation occurred
  • July 2015 – Lisa Cappello and Desiree Aselbekian separately claimed: Accused two members of board (which was a 3 member board at the time) of improper deliberation outside of public meetings; AG ruling: No violation 

*As promised, here are key excerpts from this summer’s decision letter.

Whether this particular email constitutes “deliberation,” however, is a close question. We acknowledge that it may be necessary for an individual public body member to promptly apprise the other members of certain discussions held with, or instructions given to, third parties such as employees or counsel. However, in light of the Supreme Judicial Court’s recent ruling, we find that, by copying the other Board members on an email containing his opinion about a matter of public business within the Board’s jurisdiction, Mr. Rooney engaged in deliberation outside of a meeting in violation of the Open Meeting Law. . . .

Mr. Rooney was free to ask counsel to contact the ZBA to delay its decision or he was free, as an individual and not on behalf of the Board, to do so himself. What he was not free to do under the Open Meeting Law was to share his opinion with the other Board members by email about the ZBA’s decision-making process. . .

For the reasons stated above, we find that Mr. Rooney individually violated the Open Meeting Law by engaging in deliberation over email. We order the Board’s immediate and future compliance with the law’s requirements, and we caution that similar future violations could be considered evidence of intent to violate the law.

***Attorneys who filed complaints aren’t shown as having specified residents that they represent – however. . .

Attorney Donald O’Neil has also been representing some residents in a court appeal filed over Park Central actions.

Attorney Gary Brackett represented residents who petitioned to have Leo Bartolini removed from the ZBA. He told the BOS that at least one of his ethics complaints was filed on behalf of all of those petitioners.

{ 13 comments… read them below or add one }

1 Concerned Voter July 26, 2018 at 7:48 PM

These violations of state law are against the Town’s own conduct policy and are grounds for removal according to that policy. The violations are grounds for removal in other cities and towns as well. In recent years, Boston had a major overhaul, removing and calling out those with conflicts of interest. Many municipalities have zero tolerance policies.

This misconduct is not “OK” and should not be presented as “OK” or minimalized. It is not ok. When there is a manipulation of a public process, that is against the law for good and common sense reasons: Open Meeting Law is in place to ensure that the public is not left out and to ensure a fair outcome for all parties. Where did some of this article come from? Who cares if the AG cites a more current case? It was deemed that state law was broken in both instances. The public was left out; the public was harmed; the public was the loser.

It is irrelevant who files complaint(s) and thank goodness someone is paying attention. Look at the list above. Look at the number of times some concerned resident took the time to pay attention and ask what they thought to be a legitimate question of process and/or law. Those residents are owed a huge debt of gratitude by the citizens and town government for calling attention to what could well be questionable matters. Also, just because the state declined to rule does not mean at all that a violation did not happen. For instance, a filing may have needed to be more timely. The law prohibits retaliation. It is against the law to retaliate. This is likely why citizens hire attorneys: To prevent retaliation by those violating the law, to present any matter(s) factually, and to present the laws that may have been violated correctly. Defending or minimalizing illegal behavior is dead backwards and wrong.

Importantly, the real issue is the ownership of bad behavior and/or illegal behavior by those inflicting that harm on the public.

Any misconduct is the fault and problem of the individual(s) who engaged in that unlawful misconduct. They have brought it on themselves.

They may well have disqualified themselves according to town policy and it goes without saying that they disgraced themselves by not following the state’s explicit instruction to stop. Why did they do it? If anyone is ordered by the State to recuse themselves and stop, they need to recuse themselves and stop. They are the cause of trouble. They have brought trouble upon themselves. The public has the right to say no and no longer be represented by anyone violating state law. Time for new and better leadership. Time for someone else to have a turn and time for change.

Profound thanks to all of those listed above who took the time to pay attention, ask questions, and try to get answers. Residents are not attorneys. They can only ask the questions of the town and the state to try to get answers to improve the performance, transparency, and accountability of local government for the betterment of that government for all.

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2 David Parry July 26, 2018 at 8:38 PM

Thank you, Editor, for including the long list of complaints about violations of the Open Meeting Law (OML) by the Board of Selectmen (BOS).

But the list above includes only those complaints where the AG has already made a decision. It does not include complaints still pending.

I just saw, today, that the agenda for the next BOS meeting (next week) refers to a new complaint (included in the posted agenda packet, on the town website). The subject is the lack of meeting records of the BOS when, in January 2018, it held several meetings on the Conservation Restriction for the Southborough Golf Course, when the BOS voted against the recommendations of several town Committees.

Also missing from the list are two complaints filed by me, in November 2017, and March 2018, both of which are under investigation and awaiting formal decision by the AG.

It takes the an average of 90 days for the AG to make an official determination. Sometimes considerably longer.

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3 beth July 28, 2018 at 10:05 AM

Your point may be valid if any readers simply skimmed the article. To be clear, I wrote that the list was of the ten “posted” responses by the AG’s Office. Posted referred to text earlier that stated:

The AG’s office has posted results of ten complaints filed from 2014 – 2018. (It seems that additional filings won’t be posted until a decision is made. That includes some that were already made public via this blog.)

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4 Donna McDaniel July 26, 2018 at 9:40 PM

Let us hope this is the last of episodes like this that, sad to say, only encourage the belief that there are many “shady deals” by those we elect to office and thus paintds all our officials in a bad light. it,s hard enough these days to maintain a positive belief in those we elect without having this happen right here among people we know. Our democracy requires better examples of good government run by trustworthy officials….please!

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5 David Parry July 27, 2018 at 1:34 PM

I have to pass along the sad news that attorney Gary Brackett died recently. He was much admired for his knowledge of municipal law.

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6 Concerned Voter July 29, 2018 at 1:14 PM

Attorney Brackett was disparaged and slandered by those in the ZBA meeting room who opposed him. One resident (a former Moderator candidate) posted libelous verbiage on a website calling him a “scumbag.” Simply unbelievable and a reflection on that individual.

Attorney Bracket was a highly respected member of the Greater Boston law community and former municipal attorney for the City of Worcester, having many more years of experience than any attorney in this town government.

While he tried to lend his much respected experience and direction to the ZBA Chair, Mr. Dennington, Mr. Dennington and Town Counsel was profoundly disrespectful, cutting him off mid sentence and often not allowing him to speak, sadly.

At one point, Mr. Dennington took a “straw poll” to grant constructive approval (?!) only to later learn that allowing that would be illegal, against the law, and he backed down. Why? Because Attorney Brackett had written two letters clarifying how this would be incorrect.

Shame on all of those who did not listen and value the input of a municipal law expert who served the City of Worcester as its municipal attorney for many years. He was trying to help this town. Shame on you for your disgusting behavior.

The citizens of this town will no longer tolerate those who are not impartial and are actually part of the problem. Move on. This town deserves better.

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7 Concerned Voter July 30, 2018 at 9:12 AM

BTW, why is it that there are two (2) Conflict of Interest forms publicly posted on the ZBA town website? Two. .

https://www.southboroughtown.com/sites/southboroughma/files/minutes/disclosures_d._eagle_j._walker.pdf

Remember the 500 petition signature citizen petition regarding marijuana? Remember how that matter ended with an “ANR?” Approval Not Required? Why didn’t the citizens’ voices matter on that petition? No one wanted this near children and school zones.

Back to the point: there are two disclosures posted on the Town’s ZBA website. One may be an abutter (?!), which by definition is a conflict of interest under the law and the same reason cited by the State that Mr. Rooney was required to recuse himself. Say what? Is Town Government turning this in to the proper authorities at the State level? What is the Town doing about this kind of matter? Enforcement? It is State Law not to have these types of conflicts. Follow up and public discussion please!

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8 Al Hamilton July 30, 2018 at 2:13 PM

Conhcerned
wa
You are clearly not happy with the status quo. So, what are you going to do about it. Angry posts are pretty much a waste of time unless you channel your concern in a more productive way. Your only real recourse is at the ballot box. Are you going to run for Moderator or Selectmen? Find a candidate that can win against some popular incumbents?

Posting here will change little (believe me, I know). Unless you are willing to follow through with the hard work, you are wasting your time.

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9 Concerned Voter July 31, 2018 at 7:54 AM

Al, There is a wave of discontent and sort stunned shock town wide at the unacceptability of those who violate state law and shun conflict of interest laws. It’s 2018, not 1950.

This problem is already, obviously, on the state’s radar screen thanks to those who have filed the long list of complaints cited in the above article. It is hard work to pay attention and care enough to make it better.

No one is wasting their time who cares enough to attend meetings and vote for change. You clearly have not been paying attention. Change is happening.

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10 Concerned Voter July 31, 2018 at 8:21 AM

Al, BTW, the town appreciates all that you have done to pay attention and make changes as best possible, including your own posts. All of these posts lend clarity that is productive and helpful in understanding the work done and what is left to be done for better government.
Everyone can help realize meaningful change by networking beyond the immediate connections and encouraging new blood — for new change. In the meantime, thanks for the posts so far, as they shed light on unbelievable transgressions — such as the switching over of the Advisory version of the budget to the BOS version of the budget. While you state you were ineffective in curing that problem, it would be meaningful, helpful to the town that you stay on that issue by calling the BOS and getting on the next agenda. You were Chair of Advisory. You have the experience and gravitas to address the matter. Thank you.

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11 Al Hamilton August 1, 2018 at 8:23 AM

Concerned

I do not think I have much sway with the current BOS. However, BOS is not the proper forum for the “Who controls the budget read on to the floor of Town Meeting” issue. The issue is really for the Moderator and Advisory.

I believe that some progress on this front is happening but I will leave it to the Moderator and Advisory to communicate with the public. It is important that they communicate in a number of forums to keep the electorate informed.

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12 Concerned Voter August 1, 2018 at 5:48 PM

Thank you Al. In spite of that, I still think that you have the gravitas and credibility to address this matter at any level. Yes, understood, on strictly who has oversight. However, these matters are huge, public, and must be corrected.

The overseeing Board to Advisory is BOS. This matter should be brought up and discussed publicly imminently on all levels. Hoping you could speak to the matter publicly. Please think about this. You are the former Chair of Advisory. Your voice is important. Thanks again.

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13 Al Hamilton August 2, 2018 at 8:43 AM

Concerned

The Advisory is not overseen by the BOS. The BOS is one part of the Towns Executive, other parts of the Executive are the School Committies, Library Trustees, Planning, Assessors, and the Town Clerk to name a few.

Advisory is appointed by the Moderator and serves Town Meeting, the towns legislative branch. Town Meeting is co equal to various town executives. It’s big powers include taxing (that is what we are really voting for when we approve spending) and passing by laws which can authorize or deny certain powers or behaviors. Advisory does not report to the BOS or any other executive*, it reports to Town Meeting and the Moderator.

In Southborough, the BOS has no formal powers or authority oveor or with respect to the Advisory Committee.

*This is not necessarily true in other towns where the Selectmen do appoint Finance Committees.

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