Barron lawsuit amended to return to Worcester Superior Court; another OML violation determined

by beth on August 5, 2020

In May, I posted that a lawsuit filed by Southborough residents against selectmen and the Town was moving to the Federal Courts. Based on an amended complaint, the complainants were able to return the case to Worcester Superior Court. In an indirectly related matter, the Attorney General’s Office found that the Town again violated Open Meeting Law.

The original incident that prompted the lawsuit partially related to an Attorney General’s Office 2018 finding that the Board of Selectmen violated Open Meeting Law. Resident Louise Barron accused the board of minimizing the issue and repeatedly breaking the law. The relates to then-Selectman Dan Kolenda’s outburst towards Barron during and following the comments. Additional claims against selectmen and the Town relate to actions by the board following the incident.

This June, the board received a new ruling from the AG’s office that they again violated OML. The AG’s office determined that the Town took five days longer than allowed to respond to the Barron’s Attorney’s request for certain meeting minutes. The finding was an “informal action” with no punishments or directives issued towards the board. 

The attorney had asked the AG to determine that the Town was wrongfully holding back unredacted Executive Session minutes. She wasn’t successful on that count. 

On December 16th, Attorney Ginny Kremer submitted a request for unredacted meeting minutes from two Recreation Commission meetings. A response by Town Counsel, maintaining that no unredacted minutes would be released, was received on December 31st. The Assistant AG determined that was a violation based on the 10 calendar day requirement. 

However, the Assistant AG found she was unable to determine if the confidentiality was justified.*

As for the lawsuit. . .

Selectmen had filed to move the case to the U.S. District Court based on claims that a resident’s First Amendment rights under the U.S. Constitution were violated. The Town’s attorney argued that a federal court was the appropriate venue.

Since then, the complainants asked to be sent back to the county’s court, stating that they were amending the complaint to remove the First Amendment claims. The return to the Worcester court was approved.

You may assume that the amended complaint would reduce the number of Claims lodged. In fact, the recent amendment ups the count from four counts to six.

Three counts new focus solely on Kolenda. The amended list of Counts in the complaint are: 

  1. Violation of Massachusetts Declaration of Rights, Article 19 – against “Kolenda, Shea, Bracccio, individually and as Members of the Board” [sic]
  2. Negligent Infliction of Emotional Distress – against “Kolenda, Individually”
  3. Intentional Infliction of Emotional Distress – against “Kolenda, Individually”
  4. Defamation – against “Kolenda, Individually”
  5. Violation of the Massachusetts Open Meeting Law – against “Kolenda, Shea, Healy, Bracccio and Stivers, as they constitute the Board” [sic]
  6. Declaratory Judgment – against “The Board and the Town”

Initially, the first count above also referenced First Amendment Rights and was lodged against “Kolenda, Shea, Healy, Bracccio and Stivers” [sic]. An additional Count has been removed that focused solely on the First Amendment and charged “Kolenda, Shea, Healy, Bracccio, Stivers, and Town of Southborough” of violating Barron’s First Amendment Rights.

The amended complaint still demands a jury trial.

*The AAG’s letter explains:

The complainant challenges the Board’s assertion that the April 25 and May 7, 2019 executive session minutes are protected by the attorney-client privilege and exemption (c) of
M.G.L. c. 4 § 7(26). . . .

Here, the Board is not relying on the Open Meeting Law as a basis for withholding the minutes, but rather has released the minutes subject to redaction pursuant to the attorney-client privilege and a Public Records Law exemption. Because the executive session minutes at issue here are no longer being withheld from the public under the Open Meeting Law, we find no violation of that Law in this respect.

The Open Meeting Law authorizes the Attorney General to investigate a complaint alleging a violation of the law and to request documents in the course of that investigation, but does not give us the authority to determine whether the Board’s assertion of the attorney-client privilege was justified. . . In addition, the Attorney General may not require a public body to disclose “any documentary material which would be privileged.” . . . If the complainant disagrees with the Board’s determination that these redactions are privileged, she may file an Open Meeting Law complaint in Superior Court to challenge the Board’s decision to withhold the minutes, and request that the court review the purportedly privileged documents.

{ 5 comments… read them below or add one }

1 Stop Violating State Law August 6, 2020 at 10:46 AM

Thank you to the Barrons for taking this courageous, thoughtful, positive and constructive position and not budging, on behalf of all of citizens. Because corrective goodness will come from all of this that benefits the town. Town voters care about where their tax dollars are going—and it’s not to protect this type of bad behavior or to cover up misconduct, including breaking state law, or God forbid, alleged embezzlement. The very essence and spirit of Open Meeting Law has been violated and continues to be egregiously violated by various boards and committees. Not Ok. You will be caught, reported, and remedial actions will be taken. For goodness sake, read the darn law and follow it. Btw, the reference above to the lawyer “not successful” on one request is a bit of a misstatement. It wasn’t that she was not successful, it simply that the AGO redirected that matter to the Public Records Division for a determination. What is in those redacted minutes? The public cares to know. Stay tuned.

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2 beth August 6, 2020 at 2:13 PM

My point was that the attorney wasn’t successful in getting the AG’s office to find the redactions were a violation. To be clear, the AAG redirected the complainants. The letter explains that if they believe the redactions are unnjustified they can file a complaint to the Public Records Division or in Worcester Superior Court.

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3 southsider August 7, 2020 at 9:12 AM

“alleged embezzlement”? Has that been alleged in this incident? If not, I don’t see a need to bring up unrelated crimes.
And, frankly, I’m not sure that pursuing legal actions against the town and driving up attorney fees in an action relating to a guy who isn’t even on the BOS today is in the best interests of the town.

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4 Stop Violating State Law August 7, 2020 at 11:51 AM

Everyone is entitled to their own opinion, but generally speaking it is a good idea to hold these persons accountable for violating state law. Of course it is in the towns best interest and takes courage (and money) to get enforcement of state law. How does this benefit everyone? Open meeting law is the underpinnings of your rights as a taxpayer and democracy. If you are silenced, threatened, shouted down, or intimidated, or more importantly, excluded from weighing in on a town matter, as a voter and taxpayer your basic civil rights have been violated. There would likely be no lawsuit if the citizenry was shown more respect, allowed to protest taxes and OML violations committed and actually shown that respect at the podium. Kudos to the Barron family for having the courage to draw the line in the sand on basic democratic rights. This action benefits everyone with corrective measures that otherwise would go on deaf ears. Time to shape up and follow state law, recognizing the spirit of the law.

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5 Stop Violating State Law August 6, 2020 at 2:49 PM

Exactly. But you did not clarify that important point in the above article. So the reader may mistakenly think that the attorney “was unsuccessful” on the question of redaction and it is a dead end, when in fact it is not. It’s simply a matter that is not within the oversight and jurisdiction of the AGO. Thus, the matter is appropriately redirected on to alternative routes of jurisdiction. Importantly, what was redacted? That is the question. Stay tuned. Btw, why does this burden of oversight fall on the shoulders of taxpayers. This is ridiculous. Town officials can read state law. Why are there Open Meeting Law violations? BOS needs to step up and remove their appointees who are the most egregious violators, and be more careful on all counts. This town deserves better and more truthful accountability. Not silly redactions as a result of bad or no policies or brazen scofflaws. Please do better. You know better.

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