BOS calls for improved respect; eliminated public comment (temporarily), and released 5 yrs of Closed Meeting Minutes

by beth on January 7, 2019

As I shared in a “quick update”, a December 4th “public comment” incident made news after the selectman involved addressed it last week. But, it deserves more attention since it was under a headline about the blog’s technical issues and I have related news to add.

Wednesday’s meeting included a qualified apology from the board member who lost his temper and a call for improved, respectful dialogue between residents and the board. To improve transparency, the board added a new agenda segment. Plus the board approved some overdue Executive Session Minutes and cleared a slew of them for public release. 

Breaking from tradition, the meeting didn’t allow for the public to comment. Considering the efforts to improve “listening” and “transparency”, I found it ironic that the board quietly eliminated public comment from agendas after the December 4th incident. So, I’m happy to report that it will return to agendas later this month.

Since many of you have already been following the story through other media and comments – I’ll start with what hasn’t already been covered.

Improving Transparency

Chair Lisa Braccio added a new standard item to the agenda last week. She told the public that the “Member’s Report” will allow any selectmen to:

share updates of meetings attended, items for future discussion or future events, experiences in town, or items of interest to the board. Items mentioned in this section have not been voted nor discussed with the board. . . So many things have been good and bad that should he shared with the board and the public that this is just another avenue to improve transparency.

Later, the board caught up on old Executive Minutes. Selectmen approved some outstanding ones and released 68 sets of minutes from past closed sessions. Those include previously approved but kept under wraps minutes from 2013 – 2018.*

Before you get too excited – many still had redacted discussions. Most at least clarified the subject discussed. (Though, a spot check showed that not all subjects are transparent.**)

Many of the discussions newly made public relate to legal matters now resolved. That includes legal battles with Northborough over our share of the Algonquin renovation project and the Gulbankian family over business zoning issues and fines. It also covers negotiations for agreements with the owner of 84 Main Street, St. Mark’s School, and more. Some reveal past performance evaluations and salary negotiations with Town department heads/chiefs.

Among items still redacted, some relate to salary/contract negotiations, union arbitration, and personnel discipline.

Discourse discussion

[Editor’s Note: Since the story relates to Louise Barron, I should disclose that her husband is a blog sponsor/advertiser.]

As I previously noted, Southborough Wicked Local covered the board’s call for improved public “discourse”. The story focuses on an incident between Selectman Dan Kolenda and resident Louise Barron at the December 4th BOS meeting. 

The incident is a topic that has already been passionately debated in comments on the blog.*** Much of it was captured in video by Southborough Access Media. (See below links.)

During public comment, Barron made statements about the board having broken open meeting law by not having posted past minutes as required. Mr. Kolenda, acting as Chair in Braccio’s absence, referred to her comment as slandering public officials.

In an overlapping exchange, she rebutted that it wasn’t slander, he said that he was cutting off public comment, and she returned, “Look, you need to stop being a Hitler! You’re a Hitler!” as he called for a recess. 

At that point the video volume was muted. Appearing to have verified the recording was stopped, but before the camera cut away, Kolenda rose and appeared to point and speak/shout angrily toward Barron. The board never returned to on-camera public session. (No other public items were left on the agenda.)

Since then, Barron has (through an attorney) filed Open Meeting Law complaints about the actions that night and the meeting minutes. According to the filing, Kolenda called her disgusting and threatened to have her removed. (You can see the full complaints shared in BOS packets here. You can also read SWL’s summary in its story.)

Under the “Member’s Report” on Wednesday, Kolenda made a qualified apology to the public that indicated both parties were wrong and called for improved discourse going forward:

Suggesting that this board broke the law on ministerial Record keeping sensationalizes the issue. I’m sorry that the incident occurred and I am sorry that I became visibly upset with the resident, but the reference was so incendiary, so inflammatory, that heightened emotion, as it can, resulted.

When we talk at or over each other, or resort to name calling and attempts at character assassination, we fail to hear each other. It is my hope that in 2019 and beyond we all listen to each other more, respect each other more, and work together more to move our town forward in a manner that we can all be proud of.

(You can view his full comments here, thanks to Southborough Access Media.)

Braccio echoed his sentiment about working better together in the future. And Selectwoman Bonnie Phaneuf followed:

I think that evening is behind us and we have just the future to look forward to Community, with respect for each other. Let’s not repeat it, whether this side of the table or as an audience member.

Public Comment

Ironically, “listening” was limited to a one-way conversation, since public comment has been left off of BOS agendas since the exchange.

The item was traditionally included on regular agendas. (I’d only noticed it excluded when special meetings were scheduled for administrative items, executive sessions, etc.) But it hasn’t appeared on an agenda since December 4th. Last Wednesday was the second regular-business, evening meeting held since the incident. 

That didn’t mean that no words were allowed from the audience – but it limited them. The Personnel Board Chair was able to approach the mic to get the answer to a “process question”. But following that, just as she did the December 18th meeting, Braccio adjourned without asking if there were any comments from the public. 

I reached out to find out when/if it would return to agendas. According to Purple, Braccio has asked him to put it back on the next regular meeting. That will be on January 15th. (It won’t be on the agenda for the meeting planned for later this week. The January 10th meeting is a special one dedicated to budget discussions between the board and Town officials.)

*Executive Session minutes released should cover the following dates: 2013 (Feb 12, Feb 26, Mar 12, Apr 8, Apr 23, May 7, Jun 4, Sep 3,  Oct 1);  2014 (Jan 16, Feb 4, Feb 25, Mar 11, Mar 25, Jun 3, Jul 15, Jul 24, Aug 12, Aug 21, Sep 2, Sep 23, Oct 7, Nov 17, Nov 18, Dec 2, Dec 16);  2015 (Jan 20, Jan 22, Feb 3, Apr 7, Apr 13, Apr 28, May 19, Aug 11, Oct 20, Nov 3, Nov 17, Dec 1, Dec 15);  2016 (Feb 2, Feb 29, Apr 5, May 17, Jun 28, Aug 2, Aug 23, Oct 4, Dec 6);  2017 (Jan 3, Jan 25, Feb 7, Feb 21, Mar 21, Apr 3, Jun 6, Jun 22, Jul 7, Jul 19, Aug 1, Dec 5, Dec 19);  and 2018 (Jan 2, Jan 18, Apr 9, Sep 5, Sep 12, Nov 7, Dec 18). You can find them and other BOS Minutes here.

**At least one set of minutes (December 2, 2014) includes a redacted discussion that remains mysterious – obscuring the topic and one or more participants. It also doesn’t explain what section of the Open Meeting Law allowed the exemption. (Although the related agenda listed collective bargaining as one of the exemptions for that session.) I didn’t come across others like that – but I don’t have time to examine each document.

***After a reader wrote about the exchange in an Open Thread, I watched the SAM video and recapped the incident for readers in the comment thread – pointing them to Southborough Access Media video links. There were several comments and a debate that got ugly. (It included a hypothesis that I later deemed out of line. I removed those specific comments and apologized to Selectman Kolenda for making the mistake of allowing them in the first place.)

{ 12 comments… read them below or add one }

1 Concerned Voter January 7, 2019 at 11:53 PM

Beth, thank you for this good summary. There are important take-away points and remedies here for the voting public to understand:

• There is no such thing as “ministerial record keeping.” It is nonsensical horse manure with no basis in the law. State Law states that the minutes are approved within 30 days or 3 meetings. Period. No excuses, no exceptions.

• The minimalization of this problem is straight up wrong. Anyone who has served on a Board knows that the pattern is to approve the last meeting minutes, with few exceptions. This is not a situation of correcting “ministerial” errors. Nor is expressing concern about the serial violations of state law constitute “sensationalism.” If that is the defense, it is misleading and wrong in my opinion. Those posing that defense should step down as they cannot or will not admit to the situation and/or follow standard procedure. The working public has a right to know what is contained in these minutes. The public has a right to know that the information has been withheld from the public starting in 2013. Timely approval is mandated by law.

• State law was broken under Mr. Kolenda’s chairmanship. Period. It is a matter of public record. This is not “sensationalism.” It is a fact, as determined by the Attorney General’s Office. Any one confused by the truth should visit the AGO’s decision website.

• Any citizen’s concern or expressing that concern at a podium is a First Amendment Right. Period. It is not slander. Therefore, false accusations of “slander” are just that: False.

• These Board of Selectmen members purport to be experienced and know how to run a board. That said, it does not take years and years to read, understand, and correctly apply State Law, Open Meeting Law. No excuses, no exceptions.

• What are we paying Town Counsel for? 68 + violations? Each one of those listed (if that is the correct number, it may be more), each one, if not timely approved, is a violation of State Law. The real remedy? “Hold” on payment on Town Meeting floor until the Town owns up to the 68+ violations. The other remedy: the voting booth.

• And Beth, yes, right on! Mr. Kolenda’s call for “civility” and “increased listening” is an ironic contradiction in terms based on his conduct on December 4th. He wanted the resident removed for raising concerns that he did not want discussed. He did not want to listen to the fact that the Board broke State law under his Chairmanship (and just now it has been revealed via the BOS’s list of dates, also Messrs. Shea, and Rooney).

• He states,” When we talk at or over each other, or resort to name calling and attempts at character assassination, we fail to hear each other.” Where is the “character assassination” in expressing concern over violations of State law? And now it is up to 68 plus times? 68 plus errors? Get real.

• Mr. Kolenda is not the victim. No one engaged in name calling until he provoked the situation by using the “slander” card. Shutting down public comment is not “listening.”

• The big takeaways are the following: It is important that all voters read (at least skim) and understand the content of those minutes. This information has been withheld from the public starting in 2013. The content should be discussed aloud at a public meeting. Public comment should be increased and embraced, including opposing opinions, with respect shown by the BOS to the public. (Ironically, that should be the headline of this article.) Proper representation means listening carefully to each resident who cares enough to take the time to read up, stay current, attend a meeting, and brave the podium. Respect does not mean rudely talking over residents or dismissively “thanking” them away from the podium or worse. Obviously good leadership does not include intimidating or threatening the public in an attempt to chill comment. On the whole, comments have been well meaning and respectful. I have never, not once, heard any comments expressed that did not have some legitimate basis of business concern. I have, however, seen public officials abuse their authority by shutting down commentary a number of times. Meaningful dialogue means two-way street, not one way. “Listening” means more public comment, not less.
Thanks again Beth.

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2 beth January 8, 2019 at 9:30 AM

I just want to clarify – I didn’t say that Kolenda’s statements were ironic given his behavior. (You seem to have characterized my ironic comment that way.) I’m not weighing in on who was right or wrong on the incidents. Readers can make up their own minds.

I was saying – if the Board of Selectmen chose to eliminate public comment from meetings, then a call for respectful dialogue and improved listening going forward would be ironic. Since no mention was made (at least that I heard) of the removal of the agenda item, I wasn’t sure what the board/chair’s intent was. I was relieved to learn that the removal from agendas was temporary and soon to be restored.

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3 Concerned Voter January 8, 2019 at 2:09 PM

I agree with your statements above. Also, furthermore, it is ironic and a contradiction to call for better listening, while not listening at all and shutting down public comment. That said, plenty of irony to go around. Better listening means there is something to listen to: Public comment !

More importantly, it is the content of those minutes and the alleged violations, including that serious matter referenced by Mr. Parry below, that is the real business of late. Not this self inflicted, nonsensical drama. Challenge accepted: BOS calls for better listening in 2019 and that includes something to listen to: Public comment. Back to business in 2019, please.

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4 Al Hamilton January 9, 2019 at 8:57 AM

Concerned:

Regarding your comment:

““Hold” on payment on Town Meeting floor until the Town owns up to the 68+ violations. ”

That is not exactly how it works.

You can Hold a budget appropriation for debate and or amendment prior to voting. The ensuing debate needs to be focused on the appropriation or it would be out of bounds. It would, in my semi informed opinion, be appropriate to site as a preamble a very brief synopsis of your concerns prior to offering to amend a budget.

I am not sure if one can attach conditions to a legal budget (eg no expenditures for some litigation). State law gives the BOS broad authority to manage the towns legal affairs. However, it is clear that Town Meeting sole authority to determine the amount of any budget (with some exceptions such as schools and overlay reserve).

In a year when there is talk of a 6% to 7% property tax increase, scrutiny of each budget item is very appropriate.

If you want to be effectively address this issue on the floor of town meeting you need to do your homework before and come prepared, knowing what you can and cannot do.

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5 Frank Crowell January 9, 2019 at 3:21 PM

Mr Hamilton – TM has sole authority to determine amount of any budget except schools? An amendment cannot be made to hold the school budget constant from prior year? Not that anyone would take such a drastic measure.

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6 Kelly Roney January 10, 2019 at 12:15 PM

As I understand it, a regional school committee can call an all-district “town” meeting that has the state-granted power to overrule both Town Meetings. That doesn’t mean our Town Meeting can’t try to reduce the budget, just that it doesn’t have the last word.

I think there are additional legal complications that give the local school committee more authority than other boards, as well.

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7 Frank Crowell January 10, 2019 at 3:12 PM

Thank you Kelly – I don’t remember this coming up when the town voted to keep the school system as is almost 20 years ago.

8 John Butler January 16, 2019 at 10:08 PM

For the K8 system, Town Meeting does have that authority subject to a minimum budget that the State would require, but that minimum is historically quite a bit below actual. For the Algonquin Region, Town Meeting could reduce the requested amount but, as Mr. Roney points out, that might not be the last word.

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9 David Parry January 8, 2019 at 11:52 AM

Thank you, editor, for this more more comprehensive coverage.

There is an additional, disturbing event which is not covered in the article, regarding the alleged “recess”, and the minutes of the Dec 4 meeting.

Mr Kolenda stated “We are going to recess”. This on tape, which shows there was no second and no vote. So the meeting never went into recess; it remained in open session, when the microphone was shut off and the shouting started.

Secondly, the draft minutes of the Dec 4 meeting did NOT state that the meeting went into recess. So this draft was actually correct … There was no recess.

Third, and this is truly incredible, there is the subsequent action which took place at the Dec 11 meeting, when the Selectmen voted to change the draft minutes … to state that the meeting DID go into recess.

WHY? It is obvious. Because it protected Mr Kolenda from the FACT that he broke the “rules of conduct”, allowing no shouting at official meetings. So this is an INTENTIONAL violation of the Open Meeting Law, which requires accurate minutes, not fake minutes claiming a recess when there was no such thing.

I see that Ms Barron’s attorney has asked the AG to explicitly rule on this astonishing behavior, which has effectively made a bad situation even worse.

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10 samuel_clemens January 9, 2019 at 7:48 AM

What was it, attributed to Benjamin Disraeli, and made popular by Mark Twain? To paraphrase, “Lies, damned lies, and BOS meeting minutes”.

So much for the Nixon tapes…

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11 Publius January 9, 2019 at 2:00 PM

As he often is Al is correct again about procedures for town meeting. Mr. Kolenda apologized. Has Louise Barron ? As far as OML violations, as posted earlier allegations of OML violations are often the last and sometimes only refuge of those on the losing end of a argument. The complainants are often the same as is clear by the AG website. Most AG investigations either lead to no action or for additional education of the board members involved. That is the most common remedy. The town has some real issues with significant property tax increases on the horizon. Hopefully the same energy used to discuss December 4th will be used to come up with some real budgetary solutions and not the easy out of “no tax increase.”

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12 Concerned Voter January 10, 2019 at 9:54 AM

Publius, could not disagree more with your short sighted opinion.

Not sure what you mean by “last and only refuge. . .” and “losing end” of argument. Why would you question why any citizen of this Town would want public officials who are supposed to be representing them to not violate state law. With over 68 violations and cheating the public of minutes, that is a serious matter. As for the filings themselves in any municipality, it only takes one filing. If any individual in any city or town files again on another matter, often it is the case that that individual actively participates in local government or has knowledge of a situation that others may not. Regardless, the goal is to not have any public official break the law. It does not take years to read Open Meeting Law and follow it. Not sure why you continue to minimize this serious issue. This matter involves cheating the working public of the knowledge of the running of local town government, in this case for years.

As for this serious budget situation and taxes, I agree with you there. However, the same individuals who broke State Open Meeting Law got us into this budget predicament. They are too quick to blame the public as “voting” it in, when in my opinion, the public is too trusting and automatically assumes the budget is being balanced. The result? This budget and tax mess. It is important that all voters pay close attention to all of these matters. Thank you

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