BOS Update: Selectmen accused of thrying to thwart Town Meeting vote; Questions on late/vague minutes (Updated)

by beth on November 19, 2018

Earlier this month, two members of the public accused the Board of Selectmen of not being transparent about issues related to past Town Meetings. One resident voiced upset that board actions appeared to be behind the scenes attempts to undermine a vote by residents. (The board’s involvement/intent was later rebutted by the Chair.)* Another was upset by vague communications around BOS actions on Town Meeting Warrants – including agendas and untimely minutes with gaps.

Both issues were raised during public comment at the November 7th Board of Selectmen meeting.

[Editor’s Note: This news is a bit dated. In looking at the agenda for tonight’s Board of Selectmen meeting, I realized that I never finished watching the last one. When I did, I discovered there was more to follow up on.]

Marnie Hoolahan confronted the board about its purported attempt to undermine voters’ decision to pass an Article to enforce regulations on the Zoning Board of Appeals. She told selectmen that she felt betrayed by what she discovered. The accusation was based on post-Town Meeting communications between the Town and Attorney General’s office.

In actions not discussed at public meetings, attorneys for the Town have been submitting arguments to the Attorney General’s office opposing Article 1 passed at Special Town Meeting in May.

Hoolahan asked the board why communications decisions were made and by who and why it wasn’t discussed in public meeting. At the November 7th meeting, Chair Lisa Braccio said that she wasn’t prepared to answer. She asked Hoolahan to submit a letter.

In a subsequent response, Braccio took responsibility for initial communications with the AG’s office this summer. She said that in hindsight she would have brought it to a public meeting for discussion. But she asserted that there was no attempt to undermine the Article, just to give the AG full context. In her defense, she points out that she personally voted in favor of the Article.

A letter from Town Counsel Aldo Cipriano indicates that attorneys acted on their own to send communications to the AG this fall defending their opposition to the Article.

Last May, Article 1 sought to enforce regulations for the Zoning Board of Appeals. The Article specified ZBA quorum and process regarding conflict of interest.

Prior to the vote, special legal counsel for the Town advised that some of the language was legally problematic. Hoolahan was the point person behind the Citizen’s Petition Article. She shared some rebutting comments by counsel she had retained. She also pointed out that the language would need to be vetted by the Attorney General’s office. If there were any issues, the AG would be responsible for working that out. (You can read my recap of arguments here.)

An amended version of the Article overwhelmingly passed. That meant that the passed Article was to be submitted to the AG’s office for approval. After learning that the AG was asking for extra time to rule on the article, Hoolahan started digging. She found out that the Town took a month to submit materials to the AG. She submitted a public records request to the AG. The results showed her that the Town submitted opposing concerns of special counsel but not rebutting opinions by the attorney representing the Citizen Petition Article sponsors.

The AG’s office told her Hoolahan could submit her attorney’s opinion, so she did. Based on that submission, Special Counsel Talerman responded with more arguments and Town Counsel (who had previously recused himself from commenting) writes that he was “compelled” to weigh in with his own letter to the AG arguing against the article.

In her letter to the board, Hoolahan states:

The appointed Town Administrator, the appointed Town Counsel, and some members of the elected Board of Selectmen have acted in direct opposition to the will of the citizens.

The Attorney General has the authority to disapprove a bylaw only if it is in conflict with a state law or provision of the Constitution. Unfortunately, one or several town officials have collaborated to attempt to influence the Attorney General’s review of Article 1. . . .

Town Counsel has an obvious stake in the game on the AG’s outcome and is attempting to thwart our rights under the Home Rule Amendment to the Massachusetts Constitution to govern our Town as we see fit, so long as there is no conflict with state law. . .

As a Southborough citizen and a person who spent the time, energy, and resources to reinstate a longstanding rule that was deleted without the public’s knowledge (in a non-public way per the Town Clerk that ‘the Town would have no way of knowing’), it is outrageous to me that my own Town Officials (the Town Administrator and Town Counsel) are trying to convince the Attorney General that Article 1 is somehow in conflict with 40B.

You can read the rest of Hoolahan’s letter here including attached exhibits 1 & 2. The following documents were also attachments: exhibit 3 (10/18/18 Communication from Town Counsel to AG’s office)Exhibit 4 (public records including Attorney Talerman to AG’s Office)exhibit 5 (attorney communications prior to STM), and Exhibit 6 (May 15th BOS Minutes). You can read the responses by Braccio and Counsel Aldo Cipriano here.

Following Hoolahan, Karen Shimkus addressed the board. She questioned why minutes were coming up for approval 1 1/2 years later. Braccio responded that a recent question prompted them to go back and inventory minutes from the past two years. They discovered ones that had been missed and were working to fix that. (Note, more 2017 minutes are on the agenda for approval tonight.)

Pointing out the requirements for timely approval, Shimkus accused officials of breaking state Open Meeting Law. Acknowledging that it pre-dated Braccio’s term, Shimkus specified that problems happened under Brian Shea’s “Chairmanship” and Selectman Dan Kolenda’s and Town Administrator Mark Purple’s “watch”.

Shimkus said that late minutes included a really important period when the Town was looking at the Warrant for upcoming Town Meeting. She was upset by April 2017 agenda’s not covering discussion of a “very powerful, strong” article looking to empower the ad-hoc Economic Development Committee with the authority of the defunct Industrial Development Commission. (You can read more about that here.)

She called the issue a lesson on “integrity of process and transparency, or lack thereof”. She said the video, agenda and minutes “don’t line up”. The agenda listed that selectmen would vote on all Warrant Articles, and named each person presenting. But Article 25 on the EDC wasn’t listed in the agenda or in the minutes, though the EDC Chair did speak to it.

The resident also offered constructive criticism on the process for Town Meeting Articles. She referred to the Town’s past practice of closing and re-opening and quickly closing Warrants. She asked the board to clarify and have a clear policy, a bylaw if necessary, for the opening and closing of the Warrant so residents aren’t confused on deadlines to submit or comment on articles. 

Shimkus furthered:

Stop mischaracterizing citizen’s attempts to call attention to matters such as this. Stop meeting these questions with open hostility. These are legitimate points of law. . .

The issue is who in Town government has broken state law. You can’t expect to keep sitting in that seat if you keep repeating breaking state law. That’s the legitimate focus.

Following the comments, Selectman Dan Kolenda reminded Braccio that the board’s public comment policy is to shut down comments if residents criticize Town employees or accuse employees or boards of breaking the law.

To watch both public comments, click here.

*Updated (11/20/18 8:49 am): In rereading the initial statement, “That was later partly rebutted by the Chair”, I realized that was poorly wordeded and likely to give the wrong impression. The “partly” was meant to refer to the fact that Chair Lisa Braccio didn’t rebut that there were behind the scenes actions by Town officials. She fully rebutted that the board was attempting to thwart the vote, and clarified that only she, not the full board, was involved. Her initial decision to include Talerman’s legal opinion was done outside of public meeting under her authority as Chair, though she defends it was without negative intent. And lawyers representing the Town did make continued efforts, not discussed in public meetings, to argue against the Article language adopted by voters.

Updated (11/21/18 7:49 am): Initially, I misquoted Shimkus as saying the minutes and agenda were a lesson on “integrity or lack thereof”. She actually said, “integrity of process and transparency, or lack thereof”.

{ 7 comments… read them below or add one }

1 Lucy November 19, 2018 at 8:01 PM

So town counsel who recused himself felt compelled to oppose to the AG what the citizens voted in favor of without telling the BOS or bringing it up in public? Tallermen who is paid special counsel did the same? Who hired Tallerman and is he getting paid for going rogue? Who pays these people? Oh wait the taxpayers do. As a taxpayer I think we should demand that they both no longer represent the town. Please fire these people they are lone wolves that think they are above process. This is wrong on so many levels. Where does Aldo think that this is ok or does he really work for the town at all? I’m thinking there are other interests that these attorneys are putting first. It’s simple in business these people are let go.

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2 Al Hamilton November 23, 2018 at 8:43 AM

We should be clear about who Town Counsel and Special Counsel work for.

The do not work for “The Town” there really is no such entity from an attorney client perspective. There are various entities that represent different aspects of “The Town”, School Committees, Library Trustees, Planning Board, Town Meeting etc.

Town Counsel and Special Counsels client is the Board of Selectmen they do the Selectmen’s bidding often directed through the Selectmen’s employee, the Town Administrator. We must assume that they are responding on behalf of the BOS. To do so without their instruction or worse in opposition to the position of the BOS would raise serious ethical concerns.

The BOS has some substantial authority based on State Law when it comes to the towns legal affairs. They may hire and fire counsel and can settle law suits.

Town Meeting cannot hire or fire Town Counsels. They cannot direct their activities with one exception. Town Meeting has the power of the purse and can constrain spending on legal affairs. This is a powerful but blunt instrument.

If you are unhappy with the current performance of the various Counsels then you recourse is at the ballot box and the floor of Town Meeting during budget debates.

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3 Marnie Hoolahan November 20, 2018 at 10:41 AM

Thank you Beth for sharing. I cannot explain how upsetting this is.

We, as a Town, attended Special Town Meeting (STM) and heard both sides of the argument presented for well over 1 hour and 45 minutes. Town counsel, Atty Cipriano, removed himself due to conflict of interest, and Atty. Talerman had the floor. I presented and shared my attorney’s opinion but she was not allowed to speak, even though this was a citizen’s petition. We debated and discussed and finally voted, The people who attended that STM choose to overwhelming vote in favor of reinstating the ZBA rules and regulations.

Here is where people need to be concerned:

1) We voted on a bylaw approval. The Town (elected and appointed) did not like the vote and they decided to intervene in a biased way by ONLY submitting their preferred legal opinion.
2) Learning anything about the deception in our Town required me to contact the AG, file a public request and pursue information with vigor from the elected and appointed people who run the town.
3) We cannot trust the democratic process that we have come to expect. Our vote at STM has been actively undermined. Is this what we should expect for ANYTHING that goes for citizen’s petitions or other warrants at a town meeting that doesn’t have “town Hall’s vote?
4) Our tax dollars are being spent to attempt to influence an outcome from the AG’s office? Do we really want to spend our tax dollars trying to defeat what we approved in a Town Meeting?

I strongly feel that the democratic process, that we as citizens have the rights to, has been undermined and the community of smart, capable people in Southborough should be outraged. I feel like I am in my own “House of Cards” episode and wonder how some elected and appointed authorities can wake up everyday and feel like they are being honest, ethical and working with integrity when there is a dirty game of deception and lies happening under the citizen’s noses.

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4 Concerned Voter November 20, 2018 at 5:54 PM

To Ms. Hoolahan,
Words cannot express the huge debt of gratitude owed to you for your leadership and persistence in demanding accountability and transparency in local government. This transpiring of events is outrageous and disgusting in the Teflon attempts to characterize everything as a “mistake.” These are NOT mistakes in my humble opinion.

Make no bones about it: Town Counsel (who called out his own conflict (!!) at Special Town Meeting and his sidekick Special Counsel was fully out to “doom” Article 1 — that word is a quote from Jay Talerman, Special Counsel hired by disgusting, conflicted Town Counsel. There are no excuses in the world for what they have done in undermining the democratic process. Mr. Talerman attacked your attorney using loaded language: terms such as “bombastic” and “doom,” but cites to little to no actual law or legal authority. The voters reviewed his opinion and resoundingly REJECTED it. But it was sent in to the AGO without your knowledge? All I can say is post all of these documents and let the taxpaying public decide. As for my opinion, it is time for new policies and new attorneys, absolutely withhold payment and replace them. Not one more dime for defending the WRONG THING and GOING AGAINST THE WILL OF THE VOTERS OF THIS TOWN.

What the heck?? Why such a stake in “doom”ing the reaffirmation of the QUORUM REQUIREMENT THAT HAS BEEN PART OF THE PUBLICLY PUBLISHED TOWN CODE FOR DECADES?? Why isn’t “more” better?? The Town citizens do not want three! Why try to undermine what the residents resoundingly passed? These individuals (and their BOS supporters) need to go. The voters will FIRE THESE INDIVIDUALS — ALL OF THIS IS NOT OK IN A HUGE WAY.

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5 Concerned Voter November 20, 2018 at 6:51 PM

The language of the above article does not quite square up with the tape, Beth. You might want to listen more carefully. The second resident did not “accuse” the BOS of breaking the law. She OBSERVED that the BOS broke state law, i.e. the law had already been broken back in 2017 when the infraction occurred. Also, your language of “integrity or lack thereof” is inaccurate. The tape says “what happened speaks to integrity of process, i.e. a breakdown of process.

Open Meeting Law requires that accurate minutes be kept and timely approved (per the tape, within 30 days or 3 meetings). Obviously, the law was broken because the lack of timely approval actually happened in 2017 when the minutes were, in fact, not approved. The evidence is the approval in November 2018.

Mr. Kolenda may not want to hear it, but the Board broke the law. It is disgusting that he continually seeks to shut down public comment, rather than embrace it, especially when residents are expressing legitimate concerns over breaking state law. He violates the BOS policy for BOS conduct, in my opinion. (To the public: didn’t know there was a policy? It’s a well kept secret.)

In addition to the 2017 breaking of the law, the Board also broke the law UNDER HIS CHAIRMANSHIP. See the following link to the Attorney General’s determination letters reflecting numerous infractions.

There are THREE in 2018! First, Mr. Rooney is referencing the circulation of the SECOND DRAFT DECISION of Park Central, weeks before the 2016 public hearing and decision (a matter that he was ordered recused by the state for conflict of interest and failed to do so). Second, the ZBA failed to keep and approve minutes in a timely manner, again on Park Central (why on earth would they keep legal minutes on Park Central?). Third, the BOS has violated state law over January 2018 minutes. This does not even address all the present numerous “mistakes.”

See the public admonishments from the AGO to the Town of Southborough via link:
https://massago.onbaseonline.com/Massago/1700PublicAccess2/OML.htm

Notice how on tape the 2017 minutes are barely referenced when approved. It was all just going to slide by with no discussion or explanation to the public as to why. The “questions” that Ms. Braccio (the current chair) is alluding to IS A NEW OML VIOLATION — funny how that never was discussed either — another “mistake.”

HOW DOES THE PUBLIC KNOW WHAT IS HAPPENING IF THERE IS NO DISCUSSION AND NO TRANPARENCY? Which is it: transparency and letting the public know or no discussion and intentionally minimalizing the matter?

These BOS members claim to be able to comprise and/or run a board, our town BOS. How many minutes are “mistakenly” not approved? This is ridiculous in my opinion. My opinion is that, while some may have been a mistake, others could well be game playing with the minutes. Take a look at the content and the votes on those minutes.

Per the latest determination, again under the Chairmanship of Mr. Kolenda:
“Following our review we find that the Board VIOLATED THE OPEN MEETING LAW AS ALLEGED IN THE COMPLAINT . . .” Also, ” . . .we find that the BOARD FAILED TO APPROVE THE MINUTES OF JANUARY 18 AND 30 (2018) IN A TIMELY MANNER.”

I agree with the above and the comments on the above referenced tape.

Mr. Kolenda: YOU MAY NOT WANT TO HEAR IT BUT STATE LAW WAS BROKEN UNDER YOUR CHAIRMANSHIP. Stop attacking the public with your hostile, inappropriate shut downs of valid and legitimate public comments. If you cannot control your aggressive, rude, wrong behavior, step down. This town deserves better observance of the law, accurate timely minutes, and a polite receptivity to legitimate concerns.

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6 beth November 21, 2018 at 7:48 AM

On the integrity quote, it looks like the truth lies between my misquote and yours. Going back, she said “integrity of process and transparency, or lack thereof”. I will correct that.

As for whether or not there was an accusation, I can’t see how it wasn’t one. There were repeated statements about state open meeting law being broken. She called out certain members it happened under. Then later, she said:

It’s about who in Town government broke state law. The issue is who in Town government has broken state law. You can’t expect to keep sitting in that seat if you keep repeating breaking state law.

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7 Concerned Voter November 21, 2018 at 9:58 AM

No, sorry, disagree. “Accused” is a loaded term / word that you use in your press article above, not a word used in the tape. In this reader’s view it was an observation.

Also, “accuse” is a misnomer. The Attorney General has already issued a violation letter stating that the law was broken for the same thing, not approving minutes in a timely manner. Did you look on their website?

The law was broken back in 2017 when the minutes were not approved in a timely fashion in accordance with Open Meeting Law. Read the law.

One could reasonably expect that there will be more determination letters stating that Open Meeting Law has been violated from the Attorney General’s Office.

Those sitting on the board claim to be experienced and purport to know how to adhere to Open Meeting Law. One would think after all this time sitting on a board they would know how to keep accurate, legal, timely minutes. It is a good law to protect the public and keep the public informed.

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